The presumption of enablement does not appear to hold for non-patent publications used as anticipatory references. A prophetic example drafted in the past tense may be used to find inequitable conduct in some circumstances.
Results for Past Tense
Inequitable conduct was found based upon the presentation of an example in the past tense when the example had never been performed as written. The court found that the misrepresentation was made with an intent to deceive and was material to patentability, despite the failure of the claims to recite the misrepresented subject matter.