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Proving a Negative Claim Limitation: A Tale of Three Nonprecedential Cases

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In the past 10 months, the issue of proving negative claim limitations has cropped up on appeals to the Federal Circuit. At least three panels of the Federal Circuit have addressed the issue, to one degree or another. Each panel has contributed, to some extent, to an understanding of the law. In dealing with the issue, each panel cited no precedent for doing so. Curiously, all three decisions were designated as nonprecedential. The negative claim limitations issue is one that is almost certain to recur. Perhaps the next time the issue comes up, the decision ought to be precedential, and therefore, binding.

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