Whether an inference that a device that could have existed before the invention thereof by an inventor is properly treated as an anticipatory reference under 35 U.S.C. § 102 sufficient to prove invalidity under the clear and convincing standard in the absence of any evidence that such a device actually existed prior to the invention's critical date

QUESTION PRESENTED In Washburn & Moen Mfg. Co. v. Beat ‘Em All Barbed-Wire Co., 143 U.S. 275 (1892) (also known as “Barbed Wire Patent’), the Court found the burden to establish prior invention is high, rejected the uncorroborated testimony of two dozen eyewitnesses, and held that contemporaneous documentation was required to prove a_ patent invalid over an alleged anticipatory prior art reference. That holding was subsequently confirmed in Eibal Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45 (1923). More recently, the Court confirmed the long-held view that no patent shall be found invalid by anything less than clear and convincing evidence. Microsoft Corp. v. i4i Limited Partnership, 564 U.S. 91 (2011). In the present case, the Respondents, patent infringement defendants asserting patent invalidity, prevailed at the district court by presenting a hardware system assembled at the instruction of trial counsel in 2019 as an allegedly anticipatory prior art reference. That single reference, however, was first assembled in 2019, more than a decade too late to qualify as prior art in this case. Moreover, that “reference” was actually pieced together from component parts using the asserted patent claims as the construction blueprint, modifying the assembled components to mirror Petitioner’s asserted patent claims. No witness testified that they had seen the combination of components prior to 2019. Despite the absence of any proof that the system assembled in 2019 existed at any earlier time, the United States Court of Appeals for the Federal Circuit upheld the district court’s invalidity finding on the ii grounds that the system created in 2019 “was representative of prior-art HAL systems.” 6a-7a, 8a. The questions presented is: Whether an inference that a device that could have existed before the invention thereof by an inventor is properly treated as an anticipatory reference under 35 U.S.C. § 102 sufficient to prove invalidity under the clear and convincing standard in the absence of any evidence that such a device actually existed prior to the invention’s critical date.