To someone of
who is not quite enabled,
Note to readers: In its continuing efforts to entertain as well as educate readers, EDTexweblog is pleased to bring you a series of haiku poems on common issues arising in patent litigation. The author of this one is "Winston Smith", but with a last name like Smith you know it just has to be a pen name, right?
Update: in the event that someone tries to practice patent law based on a haiku on a weblog, a reader writes that a reference actually does not have to be enabling to sustain a finding of obviousness, and offers the following authority:
Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1357, 65 USPQ2d 1385, 1418 (Fed. Cir. 2003) (“Under § 103, . . . a reference need not be enabled; it qualifies as a prior art, regardless, for whatever is disclosed therein.”)
Symbol Technologies, Inc. v. Opticon, Inc., 935 F.2d 1569, 1578, 19 USPQ2d 1241, 1247 (Fed. Cir. 1991) (“While a reference must enable someone to practice the invention in order to anticipate under § 102(b), a non-enabling reference may qualify as prior art for the purpose of determining obviousness under § 103.” – affirming finding that claims were not proven invalid for obviousness)
For more cases see Annotated Patent Digest § 18:26 Level of Enablement for Prior-Art References
A reference does have to be enabling to one of skill in the art to sustain a finding of anticipation. APD § 17:44 Prior Art Reference Must Provide an Enabling Disclosure of the Claimed Invention. While a reference need not be enabled to show obviousness, the reference together with the knowledge of one of skill must give one of skill a "reasonable expectation of success" that the alleged obvious combination can be made and would work. This could be viewed as a sort of a watered-down enablement requirement.
Other readers wishing to weigh in on the accuracy of the haiku, feel free.