Questions? Feedback? powered by Olark live chat software

Notice under 35 USC 282 too late for new prior art

In Koninklijke Philips Electronics NV v. Cinram Int'l Inc. (October 24, 2012), Judge Stearns (Southern District of New York) granted Plaintiff Philips' motion to preclude defendants from introducing argument or evidence regarding prior art first disclosed in its 35 U.S.C § 282 Notice.  Although § 282 provides that "the party asserting invalidity or noninfringement shall give notice in the pleadings or otherwise in writing to the adverse party at least thirty days before the trial," the provision does not subsume earlier deadlines imposed by a Court. In this case, the Court ruled that Defendants may only rely on prior art references (and combinations) identified in invalidity contentions or expert reports.

Takeaways - Section 282 is not likely to save the day when trying to supplement invalidity contentions.