The Federal Circuit recently denied a request for rehearing en banc in the matter of Avid Identification Systems, Inc. v Crystal Import Corp. In the underlying District Court case, it was determined that the president of Avid failed to disclose a demonstration of a "precursor product" at a trade show to the U.S. Patent and Trademark Office during prosecution of the Avid patent, and the Federal Circuit affirmed the District Court's decision that this failure was sufficient to hold the Avid patent unenforceable based on inequitable conduct.
The interesting, and somewhat disturbing, impact of this decision is the fact that the District Court jury found that Avid's trade show demonstration did not constitute invalidating prior art, i.e., Avid's demonstration was not an invalidating disclosure of the invention, nor a sale to offer to sell the patented invention.
Thus, this decision begs the question: When [and how] is non-invalidating prior art material to patentability?
For more, click here to read Judge Newman's Dissent to the En Banc Order.