What is anticipation in patent law? An invention that a person anticipates is not patented. A public working or demonstration is anticipation if the inventor demonstrates it to the public. However, the use or publication of the invention after it has been provisionally disclosed is not anticipation. The invention cannot be patented if it is merely obvious. In order to avoid the possibility of infringement, an inventor should make sure that their invention was not anticipated.
Generally speaking, the term anticipation is defined as “an element that is anticipated by a prior disclosure” or “a single reference to the same invention.” This is different from a disclosure which means that the person has the opportunity to choose from the prior art if it exists. A patent application that is anticipated by a single reference is not patented. The alleged infringer must show that he or she anticipated the claimed invention.
When determining if an invention is anticipated, the patent law provides specific criteria to determine if there is a prior invention. For example, an earlier publication may be a prior disclosure. For a later publication, the prior disclosure may be a new invention that is substantially similar. The patent law recognizes the difference between an invention that was disclosed and a published one. The first of these two criteria is when an invention has already been publicly disclosed by someone else.
An anticipatory claim is a patented product that is based on a prior invention. It has a number of essential elements that must be taught in the prior reference in order to qualify as anticipatory. The POSITA’s prior reference must teach all the elements of the claimed invention. In some cases, a prior reference may provide a hint of what an aspiring inventor might do. If there is a prior art reference containing only a single reference, the compound can be anticipated if the POSITA had expertise in that field.
An anticipatory claim is an invention that was previously disclosed by another person. If a previous publication had the same concept as the claimed invention, it is considered to be anticipatory. In some cases, this means that the prior publication taught the elements of the claimed invention. This is not a good case for a claim based on anticipation in patent law. The other exception is when an inventor has disclosed the invention prior to the filing of the patent.
The Federal Circuit has recognized that anticipation is an element of prior art when it teaches the elements of an invention. In general, this is the most common type of prior art. A single prior art reference can be used as an anticipatory invention. The premise of anticipatory invention is that the POSITA had some knowledge of the prior art when it first made the claims. Hence, a single-prior art reference can be an anticipation.