"Dennis Crouch, Prior Art Document vs. Prior Art Process: How Lynk Labs Exposes a Fundamental Ambiguity in Patent Law, Patently-O (July 9, 2025), https://patentlyo.com/patent/2025/07/document-fundamental-ambiguity.html. Identifies a previously unnoticed conceptual tension in patent law between two competing frameworks-"prior art as document" versus "prior art as process." I argue that this ambiguity explains why §311(b)'s seemingly straightforward language becomes so contentious when applied to §102(a)(2) springing prior art."
"Dennis Crouch, Lynk Labs: How the Least-Vetted Documents Destroy Issued Patents, Patently-O (Dec. 15, 2025), https://patentlyo.com/patent/2025/12/documents-destroy-patents.html. Argues the Federal Circuit's decision creates perverse incentives by allowing abandoned, unexamined patent applications to be backdated as printed publications to invalidate issued patents. Surveys the substantial amicus landscape supporting cert, including briefs from former USPTO Director Kappos, former Chief Judge Michel, and IP scholars led by Professor Sichelman."
A conceptual tension exists between two frameworks: prior art as a document and prior art as a process. That tension produces ambiguity when applying §311(b) to §102(a)(2) springing prior art. A Federal Circuit decision permits abandoned, unexamined patent applications to be treated as printed publications that can invalidate issued patents, creating perverse incentives. A large amicus landscape supports Supreme Court review, including former USPTO leadership, former judges, and IP scholars. The historical foundation of the springing prior art doctrine traces to the Supreme Court's 1926 Milburn decision and has expanded in modern doctrine, raising calls for clarification under Loper Bright.
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