Nonobviousness Intro to IP Prof Merges 1.27.09 Hotchkiss v. Greenwood, 2 U.S.
Traci,, Morning Show Host has reference to this Academic Journal, PHwiki organized this Journal Nonobviousness Intro to IP Prof Merges 1.27.09 Hotchkiss v. Greenwood, 2 U.S. 248 (1850) Defining the Invention Threshold: Ingenuity wood metal [U]nless more ingenuity in addition to skill in applying the old method of fastening the shank in addition to the knob were required in the application to it to the clay or porcelain knob than were possessed by an ordinary mechanic acquainted with the business, there was an absence of the degree of skill in addition to ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skilled mechanic, not that of the inventor. But this [substitution] can never be the subject of a patent . The difference [between this new manufacture in addition to the prior art is] destitute of ingenuity or invention. It may af as long as d evidence of judgment in addition to skill in the selection in addition to adaptation of the materials in the manufacture of the instrument as long as the purposes intended, but nothing more. Problem: articulating an objective in addition to determinative st in addition to ard; otherwise subjective in addition to vague I know it when I see it. Defining the Invention Threshold: Ingenuity Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 91 (1941) Non-obviousness reqt made express flash of genius
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35 USC Sec 103 § 103. Conditions as long as patentability; non-obvious subject matter (a) A patent may not be obtained though the invention is not identically disclosed or described as set as long as th in section 102 of this title, if the differences between the subject matter sought to be patented in addition to the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. 35 USC Sec 103 § 103. Conditions as long as patentability; non-obvious subject matter (a) [Even if novel, no patent], if the differences between the subject matter sought to be patented in addition to the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. 35 USC Sec 103 (a) [Even if novel, no patent], if the differences between the subject matter sought to be patented in addition to the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
Level of Ordinary Skill in the Art Factors that may be considered: Educational level of the inventor Type of problems encountered in the art Prior art solutions to the problems Rapidity with which innovations are made Sophistication of the technology Educational level of active workers in the field But Extraordinary Knowledge: A person of ordinary skill is presumed to know of all relevant prior art. Comparison of Differences Subject matter sought to be patented must be considered as a whole Strict identity not required less precision than §102 Graham v. John Deere Upper Plate Hinge Plate Improved Design Prior Art Is it obvious to move the hinge plate from under the shank to above the shank Enhanced flexibility
Economic in addition to motivational factors that may be considered: Long-felt but unsolved need Commercial success Failed ef as long as ts of others Copying by others Praise as long as the invention Unexpected results Disbelief of experts Nexus Requirement Secondary Considerations Invention Compared with Prior Art Rotating h in addition to le at end of bar Cutting element attached to bar Base, with passageway U-shaped bar Smith Article Jones Patent Adams Slicer X X X X X X INVENTION NOT ANTICIPATED; BUT OBVIOUS X Claim Chart Rotating h in addition to le at end of bar Cutting element attached to bar Base, with passageway U-shaped bar Tightening H in addition to le Dental Floss Claim Elements Reference A: Smith Article Reference B: Jones, Cake Slicer Patent All elements are present when both Reference A in addition to Reference B are considered. Non-obviousness requirement not met if suggestion, teaching, or motivation to combine elements as long as multiple references Cheese Industry Today September 1974 The Ultimate Cheese Slicer J. Smith The popularity of wine in addition to cheese parties has raised interest in cheese slicers that can be h in addition to led safely by people who are half-tanked. One promising design is a cutting board featuring a U-shaped bar that holds a tightened wire. A passageway in the cutting board base would ensure that the wire cut cleanly through the cheese.
Grahams Spring Clamp Grahams second attempt at solution was more successful. He added a spring mounting so that the clamp would give way when the as long as ces on the shank were too great. This invention successfully reduced bending in addition to breaking of plow parts in rocky soil. This invention also produced vibratory action that created alternating pockets in addition to ridges that were capable of storing moisture that could sustain crops during dry periods. Figure 4: Graham 811 Spring Clamp. The spring (66) at the front end of the clamp holds the plow shank flat against the I-beam frame. The shank is pivoting against the rear of the clamp in addition to the pivoting compresses the spring. Graham v. John Deere Is it obvious to move the hinge plate from position A under the shank to position 1 above the shank A B C 1 3 2
Grahams 811 Patent Graham began marketing the clamp in the late 1940s or early 1950s, in addition to continued producing it, with some modifications, as long as at least a decade in addition to a half. Some flaws became apparent with the design over time: The shank would rub against the fixed upper plate of the clamp in addition to cause wear. This wear was troublesome because the plate was connected directly to the frame of the plow in addition to was difficult to replace. The shank was held within the clamp only by the spring rod with a large hole. As it was pulled backwards, it would cause wear in addition to damage in the spring rod. Grahams 798 Patent Wear against upper plate in addition to spring rod provided impetus as long as design of new clamp. This is the patent at issue in Grahams suit against John Deere. Changes in the clamp: Hinge plate has been moved above the shank so that the shank does not come into contact with the fixed upper plate. The shank is secured to the hinge plate by a nut in addition to bolt arrangement at the as long as ward end in addition to a stirrup at the rear. Graham conceived of the design in 1950 but did not file patent application until August 27, 1951. The Graham Test Scope in addition to content of the prior art Difference between the prior art in addition to the claims at issue Level of ordinary skill in the pertinent art
Graham points [T]he 1952 [patent law] revision was not intended to change the general level of patentable invention. Ultimate question of patentability is one of law; lends itself to several basic factual inquiries The claimed invention at issue in this case is a straight as long as ward combination of (i) a pre-existing type of adjustable pedal, in addition to (ii) a pre-existing type of electronic control that is commonly used on newer cars. KSR Intl v. Teleflex
Claim 4 A vehicle control pedal apparatus (12) comprising: a support (18) adapted to be mounted to a vehicle structure (20); an adjustable pedal assembly (22) having a pedal arm (14) moveable in as long as ce [sic] in addition to aft directions with respect to said support (18); a pivot (24) as long as pivotally supporting said adjustable pedal assembly (22) with respect to said support (18) in addition to defining a pivot axis (26); in addition to an electronic control (28) attached to said support (18) as long as controlling a vehicle system; said apparatus (12) characterized by said electronic control (28) being responsive to said pivot (24) as long as providing a signal (32) that corresponds to pedal arm position as said pedal arm (14) pivots about said pivot axis (26) between rest in addition to applied positions wherein the position of said pivot (24) remains constant while said pedal arm (14) moves in as long as e in addition to aft directions with respect to said pivot (24).
Federal Circuit opinion The specification of the 565 patent indicates that prior-art pedal assemblies incorporating an electronic control suffered from being too bulky, complex, in addition to expensive to manufacture. See 565 patent, col. 1, ll. 48-53. It was this problem that the 565 patent set out to address. See id. col. 2, ll. 2-5. Fed Cir. We agree with Teleflex that the district court did not apply the correct teaching-suggestion-motivation test. We also agree that, under that test, genuine issues of material fact exist, so as to render summary judgment of obviousness improper. – Fed Cir case no. 04-1152, slip op at 10. Under our case law, whether based on the nature of the problem to be solved, the express teachings of the prior art, or the knowledge of one of ordinary skill in the art, the district court was required to make specific findings as to whether there was a suggestion or motivation to combine the teachings of Asano with an electronic control in the particular manner claimed by claim 4 of the 565 patent. See Kotzab, 217 F.3d at 1371; Rouffet, 149 F.3d at 1357. That is, the district court was required to make specific findings as to a suggestion or motivation to attach an electronic control to the support bracket of the Asano assembly.
KSR INTERNATIONAL CO. v. TELEFLEX INC. 127 S.Ct. 1727 (April 30, 2007) [T]he Federal Circuit has employed an approach referred to by the parties as the teaching, suggestion, or motivation test (TSM test), under which a patent claim is only proved obvious if some motivation or suggestion to com bine the prior art teachings can be found in the prior art, the nature of the problem, or the knowledge of a person having ordinary skill in the art. Asano Pedal
[T]his invention, contrary to Mylan’s characterization, does not present a finite ( in addition to small in the context of the art) number of options easily traversed to show obviousness. The passage above in KSR posits a situation with a finite, in addition to in the context of the art, small or easily traversed, number of options that would convince an ordinarily skilled artisan of obviousness. In this case, the record shows that a person of ordinary skill would not even be likely to start with 2,3:4,5 di-isopropylidene fructose (DPF), as Dr. Maryanoff did. Merges, Uncertainty in addition to the St in addition to ard of Patentability, 7 [Berkeley] High Tech. L.J. 1 (1993).
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