Where an inventor publishes his invention several months before filing his patent application, and there is an intervening third party publication of an obvious variant of the claimed invention, does that intervening third party publication establish a high state of the prior art as of the filing date to defeat patentability of the claimed invention under 35 USC § 103?

An affirmative answer is achieved based upon the date for determining the state of the art under Section 103, independent of whether the intervening third party publication falls under the grace period.

The Complementary Armitage Theory Negating the Grace Period:  In parallel, there is also denial of patentability under the theory of Robert A. Armitage – endorsed in official PTO guidance –  that the intervening third party publication is prior art because the grace period only exempts a publication of the same (claimed) invention.

The issues are explored in the attached paper, “State of the Art” Vitiation of the Grace Period.

StateOfTheArtMay31

Regards,
Hal