Do you wince a little bit when you read the following sentence: <\/p>\n\n\n\n
“Substantial evidence supports the Board\u2019s finding that
Amano anticipates limitation 1[C].”<\/p>\n\n\n\n
I winced because in my mind “anticipation” applies to a claim as a whole rather than to an individual limitation or element of a claim. To me, at least, anticipation has a special meaning in patent law much like the word “comprising” does when “comprising” is used as a transition.<\/p>\n\n\n\n
So, I was surprised to read the above sentence in the Federal Circuit’s recent opinion in NIKE, INC. v. LULULEMON ATHLETICA CANADA INC. et al., No. 2024-2134<\/a>, (Fed. Cir. Aug. 4, 2026).<\/p>\n\n\n\n I chalked it up to the opinion having been written by a district court judge sitting by designation with the Federal Circuit. However, upon further searching, I did find a small number of other Federal Circuit opinions where Federal Circuit judges have used “anticipation” in this way. That led me down a rabbit hole of trying to figure out when the US courts or English courts first started using “anticipation.” And, I didn’t really come up with a satisfactory answer.<\/p>\n\n\n\n So, if you are curious about this, I think an interesting article would start with the genesis of the word “anticipation” being used in patent law, how it is used by other courts, and when did the CAFC go off the rails to casually refer to anticipation of individual claim limitations.<\/p>\n\n\n\n