$NLST Director Vidal seems to have taken a creative angle in the Samsung vs Lynk Labs case....which could affect NLST.
She literally inserted herself into that CAFC appeal.
Here is what she says: This Court should hold that § 102(e)(1) published patent applications may be relied upon in inter partes review proceedings because they fall within the scope of “prior art consisting of patents or printed publications” in 35 U.S.C. § 311(b).
Notice how she says "fall within the scope........" in 35 U.S.C. 311(b). If you go to the actual statute, there is no 102(e)(1) in the current law.
The 102 (e)(1) is actually part of the pre America Invents Act statute.
But when Congress created inter partes reviews as part of the America Invents Act, it imposed a critical limit: IPRs may be based “ONLY” on “prior art consisting of patents or printed publications.” 35 U.S.C. §311(b).
Fortunately, her determination on what the court "should do" will hold no weight due to Chevron Deference.
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