Application of Frederick C. Foster

Less than two years ago I spoke for a unanimous court in the Palmquist case. Today I find myself the lone dissenter from a decision which overrules it. What has happened in the interim to convince three of the original participants in that short-lived decision that it should be overruled?

The answer emerges from the opinions of the majority and from various commentaries on the Palmquist case.1 Very simply this answer is that neither sections 102 or 103 of the Patent Act of 1952 cover the situation presented here or in Palmquist. To plug the “hole” which has been shown to exist in the Patent…