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BWC --- Summary of Brief for Respondents in 553 US 617

2011-04-29T15:09:56Z

Bcastel1:

The Intellectual Property Owners Association (IPO) filed a brief for the respondents. The main argument they set forth deals with the patentee’s rights to restrict the sale and use of the patented article or process via licenses, and thus the respondents should win the current case. As long as the patentee did not abuse their rights granted by patent law as laid out by the courts over the past hundred+ years, they should be able to restrict the use or sale of their invention via a license, much like copyrighted material. Below are the main points from the brief, taken from the brief itself.

- This Court has long held that a patentee has the right to lawfully condition the sale or license of a patented product to limit the scope of the patent rights granted. Downstream purchasers should not be able to claim broader patent rights than those held by the party from whom they purchase

- Petitioners' position would jeopardize long-accepted business practices sustained by this Court in a wide range of industries, from the development and sale of genetically modified seeds, to microchip designs, to the sale and use of copyrighted content, such as video and music on DVDs and CDs.

- This Court has long sustained the rights of patentees to enforce conditions in license agreements.

-This Court should not lightly disrupt the well-established principle that limited license grants and conditional sales do not exhaust a patentee's ability to control the use of its intellectual property. Relying on this Court's well-settled precedent, there is a broad practice among owners of intellectual property of relying on the ability to condition sales of patented goods.
-For example, owners of copyrighted works such as video, music, and software commonly sell CDs or DVDs with a limitation that they are for “home use only.”
-The same rule should apply to patent holders. There is no basis in law, logic, or public policy for differentiating between the copyright interest and the patent interest in permitting conditioned sales.

-Sound public policy supports enforcing conditioned sales or limited licenses of patented goods. An owner of a property right generally can condition the use of that right by another; thus, a patent owner should be able to fashion a license that grants less than the full patent right. It should be no different when a patentee elects to manufacture the patented item itself rather than grant another the license to do so.

In conclusion, the main points of the argument are focused around the rights given to a patent owner via licensing agreements. In this current case, the respondents have restricted the rights of the use and sale of the patented article legally, and that agreement was broken when the petitioners sold a product with the patented invention present in it.

BWC --- Summary of Brief for Respondents in 553 US 617

2011-04-29T15:08:22Z

Bcastel1: Created page with "The Intellectual Property Owners Association (IPO) filed a brief for the respondents. The main argument they set forth deals with the patentee’s rights to restrict the sale an..."

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2011-04-29T15:08:08Z

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2011-04-29T15:07:23Z

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2011-04-29T15:06:54Z

Bcastel1:

BWC --- Brief for Honeywell

2011-04-06T14:47:17Z

Bcastel1: Created page with "In Honeywell Intern., Inc. v. Hamilton Sundstrand Corp., the primary issue at hand is the doctrine of equivalents and how to define it. It is my opinion that the principle of fo..."

In Honeywell Intern., Inc. v. Hamilton Sundstrand Corp., the primary issue at hand is the doctrine of equivalents and how to define it. It is my opinion that the principle of foreseeability, stemming from the doctrine of equivalents, should not be used as one of the criteria in determining cases wrapped around the doctrine of equivalents as it goes against the purpose of having claims in the patent document.

The doctrine of equivalents is best defined as such: if something performs substantially the same function in substantially the same way, then it is to be considered an equivalent and thus infringing. It is important to keep in mind that this concept emerged to help minimize piracy in the market place. More specifically, it was developed to keep the skilled artisan from making slight changes to an item protected by a patent in order to land it outside of the patent claim’s scope and thus allowing the skilled artisan to elude the patent system. There is nothing in the origination of the doctrine that mentions that inventors should be able to predict the future and claim every possible deviation that could stem from their invention. This is just what the principle of foreseeability advocates. As every concept is, the doctrine of equivalents was expanded to include an attempt to make the idea as objective as possible. This is where the principle of foreseeability surfaced.

Foreseeability, however, is not in line with the goals of patent law and therefore should not be considered in this case. The concept of foreseeability is defined as whether or not something related to the invention being claimed was foreseeable to one skilled in the art at the time of prosecution. If so, then it should be claimed in the patent. However, patent claims are not meant to have any futuristic element to them. Rather, they are meant to provide inventors a way to legally claim what they have, not will, invented as their own. In the case of an invention that is currently in progress, the inventor can claim his progress already, thus putting it on record that he/she is working towards a certain end product. The experimentation issue is far enough removed from the current issue that it will not be discussed further. It is understandable, however, to give the patent claims some wiggle room with regards to protection if something is created within the lifetime of the patent that involves nothing but a trivial change, i.e. the piracy described in terms of the doctrine of equivalents. This wiggle room saves the patent office a large amount of time as it certainly results in less claims, however perhaps with broader language that may need addressed. If the principle of foreseeability was the law, then a patent application would include hundreds, if not thousands, of unnecessary claims as inventors and attorneys alike would try to hypothesize what the future may hold. Instead, the patent attorney and inventor alike must take care in writing concise, efficient, well-thought out, and well-worded invention claims that allow for some wiggle room so that they do not have to explicitly state all of the possibilities that the future may hold.

In the current case, Sundstrand is proposing the Honeywell should have done what even the best gypsies would have had trouble with, and that is predicting the future. Seeing that the Sundstrand technology was not developed for more than a decade after the Honeywell patent passed, it is completely unreasonable to expect Honeywell to have expected or anticipated it. Rather, the doctrine of equivalents should be applied here in it’s truest sense. Are they changes from the Honeywell technology to the Sundstrand technology trivial? Yes. Does the Sundstrand technology teach much the same thing that does substantially the same function in substantially the same way? Yes. Therefore, the Sundstrand technology should be found to have infringed on the Honeywell technology.

User:Bcastel1

2011-04-06T14:47:00Z

Bcastel1:

Doctrine of Equivalents Case List

2011-04-04T14:31:37Z

Bcastel1:

Add your case to the list with a one-paragraph (approximately 250 words) summary of the facts at issues, i.e., "an umbrella is or is not equivalent to a parasol because..."

Please put the cases in chronological order. If two are from the same year, then put them in alphabetical order. Also put your name, your login name or NDID number with your case. Use the following for a template.

* Goodwine v. Batill, 123 US 4567 (1066)
This case concerned a patent for an iPad and the patentee sued the maker of an iPod for infringement. The important part of the claim was "a device for playing music and other media comprising a touch screen..." The court held that iPod infringed the iPad patent because the ... was equivalent to the ... because ...

Patrick Lane (901431645)
* Union Paper-Bag Machine Company v. Murphy (1877)
In this case, the patents in question were machines used to make paper bags. The machines are loaded with large rolls of paper and then stamp out the bag pattern, or "blanks," which are then folded and pasted to make a paper bag. Union Paper was granted a patent in 1859 for this type of machine which used a long, straight knife which would move up and down to punch the pattern out of the paper. In 1874, Murphy was granted a patent for a similar device that used a serrated knife which cut the paper from below as the rolls moved over it. Union is suing Murphy for infringement, claiming the devices which cut the paper in each machine are substantially equivalent, and therefore are under protection by Union's 1859 patent. Murphy argued that the serrated knife is an improvement over the straight knife, and that the method of cutting was different enough to constitute patent protection. However, the expert witness explained that the paper is essentially being cut in the same way in each device: a fast moving, sharp edge is slicing through the paper. Even though one knife was serrated, the cutting occurs in the same mechanical fashion, and therefore is equivalent. The court found in favor of Union, stating that the two methods of cutting the blanks were substantially equal because they performed the same function in the same way.
* I had also read this case. The above is a good summary, though perhaps also worth noting is the fact that the court made specific mention of the fact that changing the name of the invention had no bearing on its nonequivalence (though this seems pretty obvious). - Kurt Riester 901425018

hwong1
* Absolute Software Inc. v. Stealth Signal Inc.
The patents in question deal with security apparatus’ that are used to retrieve lost or stolen electronic devices. Absolute accused Stealth of infringing on their patent, and in effect Stealth filed a counterclaim stating that Absolute infringed on another prior art. Both companies filed for summary judgment stating that neither infringed on any patent. The doctrine of equivalence was used to determine if either company infringed on other patents. Absolute proves that It does not infringe on the prior art because the transmission message to the central site is not done at a semi-random rate. Absolute did not literally infringe, but the doctrine of equivalence was needed to verify. The courts found that since Absolute’s product makes the call to the central site every 24.5 hours, it is not ‘random’ by any means but rather ‘uniformly randomly distributed’. Thus, Absolute does not infringe on its prior art. Stealth was analyzed on in infringing on Absolute by the use of an XTool agent. Doctrine of Equivalence is again applied, finding that Stealth’s invention differed in providing a step at the end of the communication that Absolute does not have. Absolute has written in their claims on their Xtool agent “without signaling the visual or audible user interface.” Therefore, when Stealth created an audible user interface, it made its invention nonequivalent to Absolutes. Thus, Stealth is found to be non-infringing with their patent.

Bill Goodwine

* Adkins v. Lear, Inc. (1968), (67 Cal.2d 882, 435 P.2d 321, 64 Cal.Rptr. 545)
This case was discussed in class and presented by another student, but I read it as well. This case concerned a patent for a gyroscope owned by Adkins, the inventor of an improved gyroscope, and Lear, the company that sells gyroscopes. Lear and Adkins had a written agreement that allowed Lear to sell Adkin’s patented invention, where Adkins received a small percentage of the net sales price as royalties. In 1957, Lear refused to pay royalties to Adkins with the claim that they were selling gyroscopes that differed from Adkin’s invention. However, the “new” gyroscopes differed only in “size, form, and shape,” but “contain[ed] the same elements.” The essential elements were the same between Adkin’s patent and Lear’s other steel gyroscopes, but the scale and exact assembly was different. Since those did not constitute a substantial difference, the jury of the Supreme Court of California held Adkins in favor and required Lear to pay royalties to Adkins for the sales price of the other gyroscopes sold. This case is an example of clear infringement.

901431048

* Adkins v. Lear, Inc. (1968)(67 Cal.2d 882, 435 P.2d 321, 64 Cal.Rptr. 545)
I am the other student^^^(see case above). Other items of note in the case, aside from the summary above, include that the court ruled that infringing the doctrine of equivalence is a matter of fact and that the jury should be the one to establish it. This brings up an interesting qualification, as it seems almost every other case considered with respect to the doctrine of equivalence was decided by judges, not juries.

Brobins

*AMEC Liquidating Trust v. IVAC Corporation, 885 F.2d 1574 (1989)

AMEC had a patent for a thermometer with a plastic cover held on by a hooking type mechanism. IVAC created a thermometer with a cover held on by a ring that created a friction lock. The CAFC held the IVAC invention was non-infringing on the AMEC patent because under the doctrine of equivalents, it did not perform the same function in the same way. The AMEC thermometer cover used an inscription fit, which created deep scratches in the cover. The IVAC thermometer used a friction fit, which only created superficial scratches in the cover. The CAFC found that the superficial scratches did not constitute an inscription fit. Also, the CAFC decided that AMEC did not present any evidence proving that the ring in the IVAC patent was equivalent to the “hook” in the AMEC patent. Because of this, the patent was non-infringing under the doctrine of equivalents.

901444263

*Johnston v. IVAC Corp., 885 F.2d 1574 (1989)

The inventor, Turner, invented a thermometer probe cover that stays on (this was owned by AMEC). It kept the cover on via a sharp metal hook to tear into the cover’s plastic. IVAC developed a thermometer that served a similar purpose of keeping the probe cover on, except that it did so with a ring on the probe (to hold the cover via friction). IVAC intentionally left the probe free of any sharp edge to ease the removal of the probe cover when needed. District Court of Southern California ruled in summary judgment that IVAC’s thermometer probe covers do not infringe AMEC’s. On appeal from AMEC, the Court of Appeals affirmed the judgment. A ring that does not tear the plastic cover is not equivalent to the hook that does. [http://campus.westlaw.com.proxy.library.nd.edu/result/default.wl?mt=CampusLaw&db=ALLCASES&rlt=CLID_QRYRLT4121840350313&origin=Search&sp=003654480-2000&method=TNC&cfid=1&rp=%2fwelcome%2fCampusLaw%2fdefault.wl&eq=welcome%2fCampusLaw&rltdb=CLID_DB1095239350313&srch=TRUE&query=TI(JOHNSTON+%26+IVAC)&vr=2.0&fmqv=s&action=Search&fn=_top&service=Search&sv=Split&rs=WLW11.01]

901471466

*Unitronics Ltd. v. Gharb, 318 Fed.Appx. 902 C.A.Fed. (Dist.Col.) (1989)

This case involved a patent for programmable logic controllers with Global System for Mobile communications. The main issue was infringement based on the capabilities of the programmable logic controllers (PLCs). The court held that alleged infringers PLCs did not contain a “digital recording device having at least one emergency message” or an equivalent. The alleged infringers PLCs also did not have the “data set for transmission to the mobile telephone including alarm information.” The court also ruled that they did not have anything equivalent to either of these claims. Based on the ruling in Warner-Jenkinson the device is not infringing unless it “contains each limitation of the claim, either literally or by an equivalent.” The alleged infringing PLCs did not have a similarity to all of the limitations to the claim and were thus allowed to continue selling their device. [[http://campus.westlaw.com.proxy.library.nd.edu/result/default.wl?mt=CampusLaw&db=ALLFEDS%2cALLSTATES%2cSCT&rlt=CLID_QRYRLT3654057332134&origin=Search&sp=003654480-2000&method=WIN&cfid=1&rp=%2fWelcome%2fCampusLaw%2fdefault.wl&eq=Welcome%2fCampusLaw&rltdb=CLID_DB3890056332134&srch=TRUE&query=unitronics+gharb&vr=2.0&fmqv=s&action=Search&fn=_top&service=Search&sv=Split&rs=WLW11.01]]

901479977

*Wilson Sporting Goods Co. v. David Geoffrey & Associates (1990)

Wilson is suing DGA/Dunlop for infringement under the doctrine of equivalents of its patented design for a golf ball. Wilson's patent is for a golf ball modeled as an icosahedron with dimples placed in such a way as to have 6 "great circles" of symmetry instead of the typical 1. The patent specifies where dimples should be placed on the ball and requires that no dimples be placed on the great circles. The accused DGA balls use the same "great circles" design, but with dimples placed on the great circles. DGA's defense is that there is "no principled difference" between its design and a design of the prior art (prior to Wilson's patent). Therefore, allowing Wilson to utilize the doctrine of equivalents would extend protection of claims already in the prior art to Wilson's patent. The CAFC decided that Wilson can only utilize the doctrine of equivalents if it can make a hypothetical claim that literally covers Dunlop's design (in this case, claim a ball with dimples placed on the great circles) and is also nonobvious considering the prior art. Wilson is unable to make such a nonobvious hypothetical claim and therefore no infringement was found.

901338276

* Wilson Sporting Goods Co. v. David Geoffrey & Associates (1990) 904 F.2d 677

I see that someone else and I did the same case, but I'll summarize in my own words here. This case involved the design of a golf ball, and the placement of the dimples on a golf ball. There are aerodynamic benefits as to where the dimples are placed and how the dimples themselves are shaped. The Wilson golf ball had a design where the face of the golf ball is divided using 6 great circles, creating an equal number of equally sized triangles. Then the midpoints of each leg of the resulting triangles are joined, creating 4 triangles inside each larger triangle. See the patent document as it is better shown than explained. This way of dividing the golf ball is not the novel idea, but rather the placement of the dimples relating to the previously mentioned division is. The Wilson ball left all 6 great circles untouched by dimples. They deemed this an aerodynamic advantage. At the time of the application filing, the prior art had already taught of the great circles, just not leaving them completely intact. The accused infringing ball from Dunlop had the same 6 great circles, but they did not make an effort to leave them uncovered, and rather had a significant number of dimples covering them. The court held that the Dunlop ball could not be considered equivalent to the Wilson ball because the prior art limited Wilson's claims in the first place, and those claims could not now be expanded to enclose the Dunlop ball. The court laid out a framework for deciding doctrine of equivalents cases: First, take the claim that is proposed to enclose the accused infringer, and reword it to literally enclose the infringer. Next, see if that claim would pass in light of the prior art. If yes, then the doctrine of equivalents can be used, if no, then it cannot. In this case, the hypothetical claim would not have passed in light of the prior art, so the doctrine of equivalents could not be used.

901417119 - Bcastel1

* Lemelson v. General Mills, Inc., 968 F.2d 1202 (1992)

Lemelson sued Mattel, alleging that Mattel's "Hot Wheels" toy car track infringed on his patented toy track. The U.S. District Court for the Northern District of Illinois found in favor of the plaintiff. Mattel appealed to the CAFC. The Court held that the "Hot Wheels" track did not contain all the limitations of the patent; it was equivalent to the prior art. That is, Lemelson's patent could not be both valid in light of the prior art and infringed upon by Mattel. Furthermore, upon his first application, claim 3 of Lemelson's patent had five clauses. The PTO examiner found the patent to be indistinguishable from the prior art. Lemelson added clauses [f] and [g] and received a patent. The important parts of the claim were, "[f] said guide means include a pair of spaced apart runner portions for defining the pathway of a vehicle moving over said track, [g] said spaced apart runner portions include upwardly extending rails for guiding the wheels of a vehicle." The Court held that "Hot wheels" did not contain any elements equivalent to the clauses [f] and [g]. The Court also noted that the public is entitled to the PTO record to determine the scope and meaning of claims.

901330223

*Valmont Industries Inc. v. Reinke Manufacturing Company Inc., 983 F.2d 1039 (1993)

901316153

This case concerns an adaption for center-pivot (i.e. rotating) irrigation systems. The adaption (an apparatus that attaches to the main frame of the sprinkler) allows the corners of a field, normally missed by the standard rotating irrigation system, to be watered. The infringement issue relates to the means by which the position of the sprinkler is detected, relative to the field. The patent uses a method of pivot angle encoders, while the "infringing" patent uses buried electromagnetic cables to guide the sprinkler around the field.

The CAFC ruled that the second device was not infringing, reversing the decision of the district court. The district court argued that the means of controlling the system were equivalent. The CAFC's argument was that while the two irrigation systems performed substantially the same overall function to obtain substantially the same overall result as the claimed invention, the way those results were achieved was substantially different. "Comparison of these two control means compels the conclusion that the claimed control means and Reinke's control means are not structurally equivalent.[...][E]ven though both the control means in the specification and the control means on Reinke's device use electric signals, the structures generating those signals are strikingly different."

Because the doctrine of equivalence requires that the two devices perform substantially the same function in substantially the same way to achieve substantially the same results, the two control systems were not equivalent under the doctrine of equivalence because they did not meet the "way" requirement of the doctrine of equivalence.

*William Bradshaw and Robert Shepherd v. Igloo Products Corp. 1997 WL 543109 (US District Court, N.D.Ill.)

William Bradshaw sued Igloo Products for infringement of a wheeled cooler. Bradshaw’s patent was for a cooler with a pulling handle and two lifting handles, one of which was connected on the same axle as the pulling handle. The Igloo products in question were the Rolling Kool Locker which had a rotatable lifting hand that can also be used to pull the cooler and the Cool Roller which had separate lifting and pulling handles coupled to separate axles. The court decided that the prior art for the Cool Roller was a different patent, the Mason patent. This patent was for a wheeled cooler with separate lifting and pulling handles. The Mason patent was granted before Bradshaw’s patent. The court ruled that the Cool Roller fell under the Mason patent. Therefore, if Bradshaw’s patent were to be expanded to include the Cool Roller’s handles, it would be an invalid patent as a result of the prior art, the Mason patent. This leads to a method of deciding infringement. If the product in question mimics prior art, then it cannot infringe the patent otherwise that patent would be invalid. In deciding infringement for the Rolling Kool Locker, the court decided that it was up to a jury to decide whether the Kool Lockers handles were equivalent to Bradshaw’s patent, since there was no other glaring evidence.

Eric Paul

* Dr. Raymond G. Tronzo v. Biomet Inc. 1998 156 F.3d 1154 (United States Court of Appeals, Federal Circuit)
In this case Biomet was accused of infringement of an artificial hip prosthesis patented by Dr. Tronzo (patent 4,743,262). The alleged infringement revolved around the shape of the artificial hip socket and the hinge that was inserted into the socket. Patent ‘262 claimed a “generally conical” shape of the hip socket. Biomet’s design contained a strictly hemispherical shape. The court heard evidence in which it was claimed that even though the shapes would have at first glance performed in the same manner, the forces generated on the surface of each implant would be different depending on the shape. Additionally, after hearing expert testimony that suggested any shape would have been equivalent to the conical limitations of the patent claims, the court said that such a ruling would have been impermissible under the all-elements rule of Warner Jenkinson because it would write the “generally conical” shape limitation out of the claims. Therefore, the court held that the accused design did not infringe upon the patent claims under the doctrine of equivalence.

Peter Mitros (901461727)

*Hale Propeller, L.L.C. v Ryan Marine Products Pty., LTD., et al, 151 F. Supp .2d 183 (2001) Connecticut District Court
Ryan owned patent 4411073, issued on 25 October 1983, which concerned devices to measure the pitch of propeller blades. Ryan originally filed the claim on 13 July 1981 it was rejected and then ammended on 4 October 1982. Hale's device called the "Hale Propeller MRI" was developed in 1997. In question are claims 1(b),(c),(f), and 6. A third party, Michigan Wheel Corporation, a distributor of Hale's invention filed for patent invalidity. The important differences between Hale's and Ryan's device are that Hale's does not use gears or worm-drives to rotate the blade and the device does not give direct readouts of the measurements using electric circuits. The issue with claim 1(b) was if a roller was a necessary part of the structure because it prevents skipping of the probe making the measurements more accurate. The court used means-plus-function to rule that the roller was important and Hale did not infringe. The issue with claim 1(c) deals with whether a worm or gear drive is necessary to rotate the blade. Ryan's patent discloses a hand-cranked device, like Hales, but includes a worm-drive. Part of Ryan's ammendment to his claim was to include worm gear to the hand-cranking device and therefore the court used prosecution history estoppel to make their decision because Ryan forfeited that claim (hand-cranked device without worm-drive) in order to get the patent and therefore cannot use doctrine of equivalents to get the claim back. The issue of claim 1(f) was whether the computer in the claim was a special computer needed for the readouts. The court ruled that the claim was not that narrow, but then the court ruled that claim 6 dealt with a computer that receives measurement data from the optical encoder and therefore Hale did not infringe. The patent was also ruled valid using the roller and worm drive to prove that it was non-obvious §103, definitively disclosed §112, and not anticipated by prior art §102(b).

Gillian Allsup

901281608

*Siemens Medical Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc. Nos. 2010-1145, 2010-117. (2001) United States Court of Appeals, Federal Circuit

This case began as an infringement lawsuit by Siemens Medical Solutions USA, inc. against Saint-Gobain Ceramics and Plastics, Inc. for the alleged infringement of a patent held by Siemens for a scintillator, a part of an x-ray machine that detects radiation. Saint-Gobain owned a patent for a similar device and the circuit court found that this patent infringed on the patent held by Siemens, which was filed earlier. Though the doctrine of equivalents was used to rule infringement, Saint-Gobain was found to have accidentally, rather than willfully infringed and Siemens was awarded 52.3 million dollars.

Siemens filed for patent number 4,958,080 on August 4, 1989. This patent was for a scintillator containing cerium-doped- lutetium oxyorthosilicate. This is a component of a radiation detector that absorbs gamma-ray photons from an x-ray machine and converts them to visible light so the results can be interpreted. Saint-Gobain also produces scintillators, filing patent number 6,6424,420 in 2000 for a cerium-doped lutetium-yttrium orthosilicate. The chemical composition differs from that of the Siemens' patent as %10 of the lutetium is substituted for yttrium. These scintillators were sold by Saint-Gobain to Philips Medical Systems, a competitor of Siemens. The circuit court found that the composition of Saint-Gobain's scintillator preformed largely the same function in the same manner as Siemens' patent, and therefore was infringement under the doctrine of equivalence.

Saint-Gobain filed a motion for a new trail, on the basis that the jury was not told that infringement by the doctrine of equivalence must be proved by clear evidence and argued that damages should be remitted. The Federal Appeals Court did not grant Saint-Gobain a new trial, but did reduces the damages to 44 million.

*Adams Respiratory Therapeutics, Inc. v. Perrigo Co., 616 F.3d 1283 C.A.Fed. (Mich.), 2010
Adams Respiratory Therapeutics patented an extended release formulation of expectorant. The patent was for Mucinex and was new in that it allowed the expectorant (an aspect to medicine which promotes the discharge of phlegm or other fluid from the respiratory tract). Adams brought suit, alleging that generic manufacturer's (Perrigo's) proposed production and marketing of generic version of the product would infringe its patent. The United States District Court for the Western District of Michigan, Gordon J. Quist, J., 2010 WL 565195, granted defendant summary judgment of non-infringement. Plaintiff appealed. Within the patent Adams specified an amount of expectorant in the drug using the words "at least." The court found that "at least" did not prevent the use of the doctrine of equivalents and that the doctrine may apply to patents with specific number ranges. Adams patent stated that it would have at least 3500 hr*ng/mL, while Perrigo was using 3494.38 hr*ng/mL (only a 0.189% difference). Adams argued that this number was not substantially different and thus should represent infringement. Perrigo argued that because the claim does not use words of approximation, Adams cannot expand this element to ensnare Perrigo's product. The court found that the fact that the claim does not contain words of approximation does not affect the analysis-“terms like ‘approximately’ serve only to expand the scope of literal infringement, not to enable application of the doctrine of equivalents.” The proper inquiry is whether the accused value is insubstantially different from the claimed value. Because the court found that there was not a substantial difference between the numbers the doctrine of equivalents applied, the order of the district court was vacated and the case was remanded.

Snooki

*Sunbeam Products, Inc. v. Homedics, Inc., Slip Copy, 2010 WL 5230892 (2010)

This case involved a patent for a force-transmitting bearing used with a platform scale. Sunbeam held a patent which specified bearings which were attached to the platform via loose tabs which allowed the bearings to move horizontally. The patent claims required the base of the bearing to be oriented parallel to the platform and remain parallel to the platform at all times. The structure of the accused device was such that the bearings were connection to the platforms using dimples on the lower surface of the platform which the bearings fit into. Sunbeam had criticized prior art which used a similar dimple connection during prosecution beacuse of the potential for unwanted force moments applied by the bearing. The CAFC upheld the District Court's finding of no infringement based on the doctrine of equivalents because bearings which rocked and pivoted, as the accused device did, did not fall within the reach of the patent claims because they did not remain parallel to the platform at all times.

901422128

*Kustom Signals, Inc. v. Applied Concepts, Inc., 264 F.3d 1326 (2001)
Kustom Signals held a patent for a multimode traffic radar system which will show either the fastest speed or the strongest signal. Three of the claims used the word "or" in their wording. Kustom claimed that the "or" was a logical operator meaning one, the other, or both. Applied Concepts had designed a radar system which returned both the fastest speed and the strongest signal. The Court held that the word "or" was to hold its traditional, customary meaning as being exclusive, not inclusive, of the two statements.

901 41 7852

*Sage Products, Inc. v. Devon Industries, Inc., 126 F. 3d 1420 (1997)

Sage Products sued Devon Industries for infringement of several patents relating to containers for disposing of hazardous medical waste (needles etc.). Devon counter-sued for infringement of one of its similar patents. The district court held (on summary judgment) that there was no infringement by either party literally or equivalently. The appellate court affirmed.

Devon’s first alleged infringement was of Sage’s container claiming an elongated slot "at the top" of the apparatus for which to deposit waste, and a "barrier over the slot" to prevent contamination. Devon's patent involved a type of elongated slot that was embedded within the container and a hinged element at the opening. The court ruled no literal infringement because the Devon patent did not include the "at the top" and "over" features of the Sage claim. Even though the devices perform the same function the court ruled no equivalent infringement because the hinged element did not "substantially constrict access" to the container, and the slot was not "substantially at the top" of the container. The court was adamant that equivalent function could not negate the “at the top” and “over” limitations of the patent, stating that such power would reduce patent claims to "functional abstracts" devoid of meaningful structure limitations for the public to reference. A second infringement involved in this case resulted in the court ruling that if patent claims specify a function and recite its importance the patentee cannot later accuse an invention devoid of the specified function of infringement.

901419437

*Siemens Medical Solutions USA, INC. v. Saint-Gobain Ceramics & Plastics., F.3d, 2011 WL 651790 (2011)

Siemens developed, manufactured, and sold PET scanners which made use of scintillator crystals consisting of cerium-doped lutetium oxyorthosilicate (LSO). Saint-Gobain manufactures and sells scintillator crystals for use in PET scanners which consisted of cerium-doped lutetium-yttrium orthosilicate (LYSO). This is chemically different from LSO in that some of the lutetium is substituted for by yttrium. In Saint-Gobain's crystals, 10% of the lutetium atoms are substituted for by yttrium atoms (crystals are 10% Y LYSO). In April of 2007, Siemens sued Saint-Gobain for infringement of claims 1 and 2 of Siemens '080 patent for LSO scintillator crystals and photodetectors. Saint-Gobain aregued that its LYSO crystals are not equivalent to those claimed in the '080 patent because their crystals are separately claimed by their '420 patent. A jury trial found Saint-Gobain infringing upon the claims held by Siemens. Saint-Gobains appeals, and claims that the district court erred in jury instructions, claiming that in cases where an alleged equivalent is separately patented, a higher burden of evidence is required. Their reasoning was that the jury's finding of infringement effectively invalidated their '420 patent for LYSO crystals as the ruling of equivalence implied a conclusion of obviousness. The Court of Appeals disagrees, stating that it is well established that separate patentability does not avoid equivalency as a matter of law. The Court of Appeals also disagrees that the jury's finding of infringement invalidates the '420 patent; it only finds the level of LYSO used in practice (10%) is equivalent to Siemen's LSO crystals. Other compositions of LYSO could well be non-equivalent. Using the function-way-result test which asks whether an element of the an accused product performs substantially the same function in substantially the same way, the Court of Appeals affirms the juries finding of infringement.

Erich Wolz

*Sunbeam Products Inc. v. Homedics Products Inc. , US Court of Appeals, District Court of Wisconsin (2010)
This case involved a clear example of non-equivalence relating to the doctrine of equivalence. The patent holder Sunbeam Products brought action against competitor Homedics, alleging infringement of its patent for force-transmitting bearings for a platform scale. This case was decided under the district court of Wisconsin. Sunbeam Products had created platform bearings which translated purely horizontally along a platform which transferred all platform loads into purely vertical loads supported by the bearings. A previous patent, ‘326 patent, encompassed bearings which rocked and pivoted. HoMedics's accused scales all include bearings similar to the bearing disclosed in the ′326 patent. Each of the HoMedics bearings is machined with a nose-like protrusion that fits into a corresponding dimple on the underside of the platform. The trial court noted that the accused bearings all rock and pivot within their corresponding dimples in the underside of the platform. Sunbeam did not dispute that the HoMedics bearings rock and pivot in that manner. Sunbeam's argument was that in addition to rocking and pivoting, the HoMedics bearings were capable of some horizontal movement and therefore infringe the ′420 patent.
In light of its claim construction and the undisputed evidence regarding the operation of the bearings in the accused HoMedics products, the district court granted summary judgment of noninfringement. The court determined that no reasonable juror could find that bearings that rock and pivot remain parallel to the underside of the platform; accordingly, it held that the pivoting bearings in all of the accused products do not literally infringe the ′420 patent.

The most important distinction that was made in this case was the following statement. “The doctrine of equivalents is not a license to rewrite the claims to encompass what a patentee believes to be an equivalent structure. That is especially true in a case such as this one, where the accused product is not later-developed technology that is insubstantially different from the claimed invention, but instead embodies disavowed prior art. Thus, the district court correctly held that the accused bearings do not infringe the ′420 patent under the doctrine of equivalents.”

Christine Roetzel - 901425022

*Hughes Aircraft Co. v. U.S. 717 F.2d 1351

NASA and Department of Defense, were trying to build a satellite that would orbit the earth. However, they were unable to do so they had problems with the attitude control. Williams, a man who was working for Hughes Co. was able to figure out the problem. He was able to have lab model on 4/2/60 and it was called "dynamic wheel." Williams presented it to NASA and then Hughes Co and NASA entered an agreement to build the satellite. Williams filed for a patent on 4/18/60 and that became known as "Williams patent."
However, the govt started to build these spacecrafts that used the same systems from the satellite and did not give compensation to Williams. It went to court and the govt said that Williams patent was invalid because it infringed McLean's telescope. Williams rewrote his claims and stated “McLean's infrared telescope does not indicate the instantaneous spin angle position of his body with reference to a fixed external coordinate system, and it does not indicate the orientation of the axis with reference to a fixed external coordinate system." The court found Williams patent valid.
Then, the court looked at the spacecraft and compared it to Williams satellite. They found the following similarites: "(1) each is spin-stabilized; (2) each contains a jet on the periphery, connected by a valve to a tank containing fluid for expulsion substantially parallel to the spin axis; (3) each employs sun sensors to sense ISA position; (4) each requires knowledge of orientation relative to a fixed external coordinate system; (5) each contains radio equipment for communicating with the ground; (6) each transmits spin rate and sun angle information to a ground crew; and (7) in each, jet firing is synchronized with ISA position to effect controlled precession and thus to achieve a desired orientation."
Needless to say the court ruled that govt infringed Williams patent.

901439143

* Sage Products, Inc. v. Devon Industries, Inc. 126 F.3d. 1420 (1997)

In this case, Sage Products sued Devon Industries for infringement of two of its patents and Devon countersued Sage for infringement of one of its own patents, all of which relate to the disposal of medical waste products such as needles. In trial and on appeal, the courts held that there was no literal infringement nor infringement by the doctrine of equivalents by any party. Sage claimed that Devon's '251 for a "tortuous path" disposal container infringed on both its '728 patent for a sharps disposal container and its '849 patent for the removal and storage of syringe needles. Devon claimed that Sage's '728 patent infringed on its '592 patent for a disposal container.
** The '728 patent consists of an opening with a curved arc extending above it and another below it (inside the container) with a rotatable L-shaped flap such that waste can be deposited without exposing it again.
** The '849 patent covers a container with notches for removing needles and a "moveable closure" that allows the container to be closed and reopened as needed.
** The '251 patent covers a disposal container with a slotted opening at the top and 2 overlapping but displaced obstructions within the container to prevent accessing material that has been disposed of. It also has a closure that permanently locks once closed.
** The 592 patent covers a container that has a slotted opening and another "baffle" within the container that has another slotted opening horizontally displaced from the first
The courts held that the '251 patent did not infringe on the '728 patent because the patent explicitly described a precise configuration of an opening at the "top of the container" with one obstruction "over said slot" and another below, and that '251 configuration was different. They also held that the '251 patent did not infringe on the '849 patent because there was an important difference between permanent closure and closure that can be reopened. Finally, the '728 patent did not infringe on the '592 patents for similar reasons as the first: the configurations were very different. The '592 patent emphasized a horizontal displacement, which was not part of the '728 patent. The courts held that the use of precise language in patents limited the claims and because disposal containers were reasonably simple and straightforward, different configurations could not be equated.

Julia Potter (jpotter2)

* Kudlacek v. DBC, Inc. 115 F. Supp. 2d 996 (2000)

Owner of Patent No. 5,611,325 for an archery bow stabilizer, Donald Kudlacek, brought an infringement suit against competitor DBC, Inc. DBC counterclaimed, stating that its patent for a peep sight targeting system was being infringed. The claim in question was a "threading" limitation on the stabilizer describing how it is adjusted and secured. The District Court decided that neither Kudlacek's stabilizer nor DBC's peep sight target system were infringed. This was because the accused device, the "Super Stix," was found to not be equivalent to the patented device because it did not infringe all the elements of claim 1. Though the accused device performs, basically, the same function, it does so in a substantially different way; therefore the Doctrine of Equivalents does not apply. Note that the invalidity issue was not settled by finding that the patent was not infringed.

901437068

* Adkins v. Lear, Inc. (1968), (67 Cal.2d 882, 435 P.2d 321, 64 Cal.Rptr. 545)

Adkins v. Lear discussed the assembly and sale of a certain type of gyroscope. The gyroscope design had originally been borrowed by Lear, from Adkins under the terms that Lear would pay a small percentage of their profits to Adkins since Lear was not the original inventor of the gyroscope mechanical design. Conflicts arose when Lear refused to pay Adkins under the claim that their new gyroscope was a unique design that differed from the original design contracted from Adkins. The judges determined that since the new design was similar to the original in all the necessary inner working components and only differed in the external aesthetic features, the new design infringed on the old since it did not provide any new or useful feature. Based on this judgment Lear was required to pay Adkins for any sales of the new gyroscope.

901438174

* Adkins v. Lear, Inc. (1968), (67 Cal.2d 882, 435 P.2d 321, 64 Cal.Rptr. 545)

I hate to be repetitive, but I read the same case. I will reiterate, it is a case about a dispute over profit sharing. Adkins invented the gyroscope and required Lear to share profits if he used the design. The dispute arose when Lear made an improvement upon the designed and refused to pay profits on this "new and improved" design. This design was really just the innards reworked into a new shape without altering the size or scale. This was ruled to be equivalent to the original design, reinforcing the underlying ideas of the doctrine of equivalents.

cmadiga1

Lemelson v. Mattel (1992), (968 F.2d 1202)

Lemelson sued Mattel, saying that their hotwheels toys infringed on his patent for a flexible track for toy cars. In the original case, Hotwheels was ruled to have infringed on Lemelson's patent. The history of the patents in the toy race car tracks was important in this case. Before Lemelson received his patent, Giardiol had a patent for a flexible car track with an internal support. Mattel's track was very similar in all aspects of the Giardiol patent, but did not have an internal frame. Lemelson's patent was originally denied as being completely anticipated by Giardiol. However by adding claims to the vertical supports which define the track and keep the car on the track Lemelson was able to distinguish his product and obtain a patent. Therefore, these were ruled as the defining characteristics of Lemelson's patent. In the original case, the jury found that Hotwheels product did not contain these characteristics. Therefore, the Court of Appeals reversed the previous ruling saying that the jury had made a logical error.

Andy Stulc

BWC --- Pickering v. Holman, 459 F.2d 403

2011-03-22T16:02:56Z

Bcastel1: Created page with "This case deals with a mix of experimentation and publication issues. The patentee is suing for patent infringement on his patent for a plastic blinker light, with traffic appli..."

This case deals with a mix of experimentation and publication issues. The patentee is suing for patent infringement on his patent for a plastic blinker light, with traffic applications. His suit was shot down in district court, and now was being heard by the District of Montana, with Judge James M. Carter delivering the opinion. There are also rewards and other money issues, but those are not relevant to this discussion.

The defendants argue that the patent awarded to Pickering is invalid based on the "prior use" and "printed in a publication" bars. They contend with regards to "printed in a publication" that even though the publication concerned an experimental phase, it still put in the public domain the content of the invention. Concerning what is a publication, the court asserts "Confidential documents are not publications. The key is disclosure by way of a medium capable of providing wide public access, not commercial exploitation." The court also claims that Pickering's main error in his argument is that he is not able to use the experimentation exception that is found in "prior use" discussions in "printed publication" issues. Once again, once the idea is in the public domain, the clock starts to tick.

User:Bcastel1

2011-03-22T15:39:36Z

Bcastel1:

ESB Briefs

2011-03-04T00:45:52Z

Bcastel1:

Here is a list of briefs for the Electric Storage Battery Co v. Shimadzu case. Add your name next to the list for the one with the fewest names and read that one.
* Reply Brief for Respondents. (Feb. 27, 1939)
#Michael Madden
#Hwong1
#croetzel
#kroshak
#Adam Mahood
#Michael Ackroyd
#
#
#
#
* Reply Brief for Petitioner. (Feb. 7, 1939)
#Cmadiga1
#90144463
#901422128
#jpotter2
#ewolz
#
#
#
#
#
* Brief for Respondents (Jan. 28, 1939)
#LMiller
#Josh Bradley
#Brobins
#Ebingle
#kyergler
#BCastel1
#
#
#
#
* Brief for Petitioner. (Jan. 1939)
#Kschlax
#Andy Stulc
#Mzahm
#Rabot
#Peter Mitros
#Jacob Marmolejo
#
#
#
#

Bilski brief list

2011-02-14T15:47:37Z

Bcastel1:

Choose one of the briefs from this list. Delete it and replace it with your login name. Please be careful editing this page. If you mess up all the formatting it will create work for your colleagues.

#Reply Brief for Petitioners (Oct. 26, 2009)
#jpotter2
#Adam T. Letcher
#Craigkrzyskowski
#dcarter2
#ebingle
#Rabot
#Eric Paul
#cnorton
#kschlax
#Jnosal
#Mackroyd
#dsakamot
#eguilbea
#901444263
#shockett
#gallsup
#KyleR
#Andy Stulc
#Brief for Amicus Curiae Mark Landesmann in Support of Affirmance (Oct. 2, 2009)
#Amicus Curiae Brief of Center for Advanced Study and Research in Intellectual Property (CASRIP) of the University of Washington School of Law, and of CASRIP Research Affiliate Scholars, in Support of Affirmance of the Judgment in Favor of Respondent (Oct. 1, 2009)
#Kevin Godshall
#sbonomo
#Brief for the Respondent (Sep. 25, 2009)
#Kriester
#Brobins
#Josh Bradley
#Chuck Talley
#E W Hitchler
#Brief of Amicus Curiae American Intellectual Property Law Association in Support of Neither Party (Aug. 6, 2009)
#Brief of Amici Curiae Biotechnology Industry Organization, Advanced Medical Technology Association, Wisconsin Alumni Research Foundation & The Regents of the University of California in Support of Neither Party (Aug. 6, 2009)
#Mzahm
#Adam Mahood
#Hamburgler
#Brief of F%21ed%21eration Internationale Des Conseils En Propri%21et%21e Industrielle as Amicus Curiae in Support of Neither Party (Aug. 6, 2009)
#Brief of Amicus Curiae Law Professor Kevin Emerson Collins in Support of Neither Party (Aug. 6, 2009)
#Brief of Amicus Curiae Legal OnRamp in Support of Neither Party (Aug. 6, 2009)
#Brief of Amicus Curiae John Sutton in Support of Petitioners (Aug. 6, 2009)
#Brief of Amicus Curiae Novartis Corporation Supporting Petitioners (Aug. 6, 2009)
#Brief Amicus Curiae of The Federal Circuit Bar Association in Support of Neither Party (Aug. 6, 2009)
#Brief of Regulatory Datacorp, Inc, American Express Company, Palm Inc., Rockwell Automation, Inc., and SAP America, Inc. as Amici Curiae in Support of Neither Party (Aug. 6, 2009)
#Brief of Double Rock Corporation, Island Intellectual Property LLC, LIDs Capital LLC, Intrasweep LLC, Access Control Advantage, Inc., Ecomp Consultants, Pipeline Trading Systems LLC, Rearden Capital Corporation, Craig Mowry and PCT Capital LLC as Ami ci Curiae in Support of Petitioners (Aug. 6, 2009)
#901422128
#Brief of Amicus Curiae The Houston Intellectual Property Law Association in Support of Petitioners (Aug. 6, 2009)
#Brief of Franklin Pierce Law Center as Amicus Curiae in Support of Petitioners (Aug. 6, 2009)
#LMiller
#Brief of TELES AG as Amicus Curiae in Support of Neither Party (Aug. 6, 2009)
#Brief of Amicus Curiae San Diego Intellectual Property Law Association in Support of Neither Party on the Merits (Aug. 6, 2009)
#Brief of Robert R. Sachs and Daniel R. Brownstone as Amici Curiae in Support of Neither Party (Aug. 6, 2009)
#CRoetzel
#Brief of Amicus Curiae AwakenIP, LLC in Support of Petitioners (Aug. 6, 2009)
#Pmitros
#pfleury
#901479977
#Brief for Prometheus Laboratories Inc. as Amicus Curiae in Support of Neither Party (Aug. 5, 2009)
#Brief of Amicus Curiae Intellectual Property Owners Association in Support of Neither Party (Aug. 5, 2009)
#Brief of Amicus Curiae Boston Patent Law Association in Support of Petitioners (Aug. 5, 2009)
#Brief for the Business Software Alliance as Amicus Curiae in Support of Affirmance (Aug. 5, 2009)
#Brief of Amicus Curiae Washington State Patent Law Association in Support of Petitioner (Aug. 5, 2009)
#Bobby Powers
#Brief of Amici Curiae Association Internationale Pour la Protection de la Propriete Intellectuelle and International Association For The Protection Of Intellectual Property (U.S.) in Support of Reversal (Aug. 5, 2009)
#Brief of Amicus Curiae Caris Diagnostics, Inc. in Support of Petitioners (Aug. 5, 2009)
#Brief of the Intellectual Property Law Association of Chicago as Amicus Curiae Supporting Neither Party (Aug. 5, 2009)
#Brief of Monogram Biosciences, Inc. and Genomic Health, Inc. as Amici Curiae in Support of Neither Party (Aug. 5, 2009)
#Brief of Amicus Curiae Raymond C. Meiers in Support of Neither Party (Aug. 5, 2009)
#Xiao Dong
#Brief of Amicus Curiae Conejo Valley Bar Association in Support of Neither Party (Aug. 3, 2009)
#Brief For Petitioners (Jul. 30, 2009)
#Brief of Amicus Curiae Telecommunication Systems, Inc. in Support of Neither Party and for Purely Prospective Application of Any Adoption of the New Legal Test Applied Below (Jul. 24, 2009)
#Brief for the State of Oregon as Amicus Curiae in Support of Neither Party (Jul. 24, 2009)
#ewolz
#kristen kemnetz
#Brief for the Respondent in Opposition (May 1, 2009)
#Brief of Koninklijke Philips Electronics N.V. as Amicus Curiae in Support of Petitioners (Mar. 2, 2009)
#Brief of Amicus Curiae Boston Patent Law Association in Support of Petitioners (Mar. 2, 2009)
#Brief of Accenture and Pitney Bowes Inc. as Amici Curiae in Support of Petitioners (Mar. 2, 2009)
#Brief Amicus Curiae of Franklin Pierce Law Center in Support of Certiorari (Mar. 2, 2009)
#Brief of Amica Curiae Anne E. Barschall, Pro Se in Support of Petitioners (Mar. 2, 2009)
#bcastel1
#Jmarmole
#Gtorrisi

BWC --- Non-Obviousness

2011-02-09T03:59:56Z

Bcastel1:

==Historical Development==
The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.

===Hotchkiss v. Greenwood (1850)===

Prior to [[Hotchkiss v. Greenwood]] an invention only had to be novel. This case basically established the notion that there had to me more to it, some sort of threshold for inventivness, which ultimately became the idea of ''nonobviousness''.

:...the novelty consisted in the substitution of the clay knob in the place of one made of metal or wood, as the case might be. And in order to appreciate still more clearly the extent of the novelty claimed, it is proper to add, that this knob of potter's clay is not new, and therefore constitutes no part of the discovery. If it was, a very different question would arise, as it might very well be urged, and successfully urged, that a knob of a new composition of matter, to which this old contrivance had been applied, and which resulted in a new and useful article, was the proper subject of a patent.

:The novelty would consist in the new composition made practically useful for the purposes of life, by the means and contrivances mentioned. It would be a new manufacture, and nonetheless so, within the meaning of the patent law, because the means employed to adapt the new composition to a useful purpose was old, or well known.

:But in the case before us, the knob is not new, nor the metallic shank and spindle, nor the dovetail form of the cavity in the knob, nor the means by which the metallic shank is securely fastened therein. All these were well known, and in common use, and the only thing new is the substitution of a knob of a different material from that heretofore used in connection with this arrangement.

:Now it may very well be, that, by connecting the clay or porcelain knob with the metallic shank in this well known mode, an article is produced better and cheaper than in the case of the metallic or wood knob; but this does not result from any new mechanical device or contrivance, but from the fact, that the material of which the knob is composed happens to be better adapted to the purpose for which it is made. The improvement consists in the superiority of the material, and which is not new, over that previously employed in making the knob.

:But this of itself can never be the subject of a patent. No one will pretend that a machine, made, in whole or in part, of materials better adapted to the purpose for which it is used than the materials of which the old one is constructed, and for that reason better and cheaper, can be distinguished from the old one, or, in the sense of the patent law, can entitle the manufacturer to a patent.

:The difference is formal, and destitute of ingenuity or invention. It may afford evidence of judgment and skill in the selection and adaptation of the materials in the manufacture of the instrument for the purposes intended, but nothing more.

It can be seen in this pronouncement of the court opinion by Justice Nelson, that the original requirement of novelty is not satisfactory, as the knob designed by Hotchkiss is a new product. Although the term "nonobviousness" will not be developed for some time, the court's decision hinges on the fact that the mere substitution of better suited materials is too obvious a development to warrant a patent. The fundamental premise of nonobviousness is presented a few paragraphs later, as Justice Nelson states,

:"....unless more ingenuity and skill in applying the old method of fastening the shank and the knob were required in the application of it to the clay or porcelain knob than ''were possessed by an ordinary mechanic acquainted with the business'', there was an absence of that degree of skill and ingeunity which constitute essential elements of every invention. In other words, the improvement is the work of the skillful mechanic, not that of the inventor."

Thus, it is made clear that an invention must not only be novel, but must require a level of ingenuity that exceeds that of an individual with ordinary skill in the related field.

===A&P Tea v. Supermarket Equipment (1950)===

While it pre-dates the language of section 103, [[A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950)]] discussed some of the more difficult issues related to the level of invention. In particular, this case dealt with three significant issues related to the process of determining patentability:

*First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.

The importance of a "long felt but unsatisfied need" in the determination of nonobviousness is that it is difficult to claim that an invention is obvious if there has been a demand for a certain product and no one has been able to fulfill that need. However, it is important to note that there are two requirements that must be met here. There must be a need for the product and the need must have existed for a long time. If the need is relatively new, then it is difficult to claim that a person with ordinary skill in the field would have not developed such a design had he been aware of demand for such a device. On the other hand, if the market related to a certain field has provided no sign that there is a need for such an improvement, then it can be argued that the design would have been obvious had anyone expressed interest in the proposed device.

*Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.

In Graham v. John Deere, the history of the patent process is discussed, particularly Thomas Jefferson's outlook on the purpose of providing a patent. Jefferson made it clear that patents were only to be granted for inventions that furthered human knowledge and were new and useful. The granting of patents for small details, obvious improvements, or frivolous devices was neither worthwhile nor helpful. In A&P v. Supermarket Corp., Jefferson's sentiment is echoed, except the focus of the court is narrowed further to the important frontier of science and engineering. As Justice Douglas states, "the purpose is to promote the Progress of Science and Useful Arts," and the two disciplines most associated with progress at that time (and still currently) are science and engineering. Even later, the court states, "patents serve a higher end-the advancement of science," which make this point very clear.

*Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.

The court's outlook on the evaluation of patents in regard to the combination of prior elements is best summarized in the following explanation. "The mere aggregation of a number of old parts or elements which, in the aggregation, peform or produce no new or different function or operation than that theretofore performed or produced by them is not patentable invention....only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable."

===35 USC 103 (1952)===
This section of the code was adopted in 1952 and prohibits a patent in a case where
: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.

===Lyon v. Bausch & Lomb (1955)===

In [[Lyon v. Bausch & Lomb, 224 F.2d 530 (1955)]] Learned Hand, in his brilliance, expounded on the new standard thusly:
:Therefore we at length come to the question whether Lyon's contribution, his added step, was enough to support a patent. It certainly would have done so twenty or thirty years ago; indeed it conforms to the accepted standards of that time. The most competent workers in the field had for at least ten years been seeking a hardy, tenacious coating to prevent reflection; there had been a number of attempts, none satisfactory; meanwhile nothing in the implementary arts had been lacking to put the advance into operation; when it appeared, it supplanted the existing practice and occupied substantially the whole field. We do not see how any combination of evidence could more completely demonstrate that, simple as it was, the change had not been "obvious * * * to a person having ordinary skill in the art" — § 103. On the other hand it must be owned that, had the case come up for decision within twenty, or perhaps, twenty-five, years before the Act of 1952 went into effect on January 1, 1953, it is almost certain that the claims would have been held invalid. The Courts of Appeal have very generally found in the recent opinions of the Supreme Court a disposition to insist upon a stricter test of invention than it used to apply — indefinite it is true, but indubitably stricter than that defined in § 103.4

===Graham v. John Deere (1966)===

In [[Graham v. John Deere, 383 U.S. 1 (1966)]] indicated a shift away from trying to establish a level of "inventiveness" to the statutory language of "nonobviousness." The criteria to determine nonobviousness include
* scope and content of the prior art;
* differences between the prior art and the claims at issue;
* level of ordinary skill in the pertinent art; and,
* secondary considerations, including:
** commercial success of the invention;
** long-felt but unsolved needs;
** failure of others to find a solution, etc.

===U.S. v. Adams (1966)===

* 1966: [[US v. Adams, 383 U.S. 39 (1966)]] All the evidence must be considered. Even small changes can have large consequences, which is relevant to a determination of nonobviousness.

===Anderson's Black Rock v. Pavement Salvage (1969)===
Things seem relatively clear at this point, but the Supreme Court seemingly basically messed it all up again in [[Anderson's Black Rock, Inc. v. Pavement Co., 396 U.S. 57 (1969)]] by returning the focus to "inventiveness" by revisiting the old problem of when a combination of old or know elements can become patentable.

==Suggestion to Combine==
[[In Re Rouffet]] deals with the issue of a combination of previously-patented elements. The cases above all pre-dated the 1952 statute and the 1966 Supreme Court cases.

:"When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."
:"[T]he suggestion to combine requirement is a safeguard against the use of hindsight combinations to negate patentability. While the skill level is a component of the inquiry for a suggestion to combine, a lofty level of skill alone does not suffice to supply a motivation to combine. Otherwise a high level of ordinary skill in an art field would almost always preclude patentable inventions. As this court has often noted, invention itself is the process of combining prior art in a nonobvious manner.

==Objective Tests==
Two important considerations were the focus of [[Hybritech v. Monoclonal Antiboties, 802 F.2d 1375]].
*A lot of the evidences hinges on laboratory notebooks. The CAFC held that even though the lab notebooks were not witnessed until months or about a year after did not preclude them of being of credible evidentiary value.
*The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they ''must'' be considered by the court.
*This case also considers the concept of ''enablement'' which means that that patent specification must be complete enough so that someone with ordinary skill in the art would be able to make the invention. Enablement is set out in 35 USC 112.

==The Inventive Step==

==Relationship with Novelty==
==Nonobviousness vs. Invention==
==Secondary Considerations==
==Ordinary Skill in the Art==
==Proposing a New Type of Patent, Patent-B==
Proposing a New Type of Patent in Light of 35 USC 103

Thomas Jefferson, essentially the Father of Patents once said “Certainly an inventor ought to be allowed a right to the benefit of his invention for some certain time… Nobody wishes more than I do that ingenuity should receive a liberal encouragement.” 35 USC 103 states:

“A patent may not be obtained through the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a while 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”

Furthermore, the Constitution gives Congress the duty “[t]o promote the useful arts and sciences.”

While the grey area that Congress is trying to define one way or the other is tough to do, I will argue that a new type of patent should arise, one that rewards simple changes to every day products, saving patents for progresses in high-tech science and engineering. In addition, I will argue that a long-felt need in the industry being met should result in a patent and should be included in 35 USC 103. In this new type of patent – herein called patent-B – the secondary considerations less the long-felt need requirement that were developed over time can be given more weight. Since the ultimate goal of the Patent Office is to promote soceity’s advancement, something that improves society in some way should be given some sort of limited monopoly, yet not the type currently given to patent-holders. Patent-B would have a shortened term, let’s say, a third of the current patent term, so just under 7 years. The purpose would be to basically give a 2nd place prize to an inventor who did something obvious, yet purposeful.

The first problem that arises with the analysis of 35 USC 103 is whether or not cases prior to 1952 are valid, that is, the question of whether or not the doctrine governing patents relative to its obviousness has changed over the years. In Lyon V. Bausch & Lomb, Justice Learned Hand addressed this topic at length. His conclusions were well founded and have held throughout the test of time. He is quick to point out that by putting 35 USC 103 into writing, Congress is only defining what has guided, inconsistently, the Courts for almost a century. Hand states

“35 USC 103 only restores the original gloss, substantially in opsissimis verbis; which has never been overruled; but on the contrary for seventy or eighty years had continued to be regarded as authoritative.”

He continues,

“Courts again and again shift their position; and, although they are apt to do so under cover of nice distinctions, they impose the risk of anticipating the changes upon those who may have acted upon the faith of the original. Certainly a legislature, whose will the courts have undertaken to proliferate, must be free to reinstate the courts’ initial interpretation, even though it may have been obscured by a series of later comments whose upshot is at best hazy.”

Basically Hand states that even though it went into writing in 1952, 35 USC 103 has been considered law since the Hotchkiss v. Greenwood case, which was a century prior. Now it is sound to use the cases discussed throughout this course to argue the point at hand, how the patent decisions over time have evolved.

In Hotchkiss v. Greenwood, the issue of whether or not a patent for a clay doorknob should be upheld reached the US Supreme Court, and Justice Nelson took up the matter. Specifically, the question at hand was whether or not the mere substitution of clay for the doorknob warrants a patent. Justice Nelson concludes that because the inventors did nothing but substitute clay for another material, no patent should be granted. However, Justice Nelson concedes that

“Now it may very well be, that, by connecting the clay or porcelain knob with the metallic shank in this well known mode, an article is produced better and cheaper..”

The key words here are “better” and “cheaper”, as they directly show that the new knob benefits society. Perhaps the change is obvious, as the decision ultimately said so, but the change is also beneficial and should be encouraged. Thus, this is one example where I would award a patent-B.

Chronologically the next case considered in class was the A. & P. Tea Co. v. Supermarket Corp. case, which involved a simple change to the typical grocer’s counter. Justices Jackson, Douglas, and Black all agreed that the matter at hand did not deserve a patent and thus declared it invalid. In short, the issue was whether a very simple change, an elongation and an organizing device placed on the counter, warranted a patent. Certainly, this is not an inventive step, as the abovementioned Justices so passionately stated. While in this case, the secondary factors that have since been developed were never really addressed, it can be assumed for the purpose of this argument that it made the job of the grocer significantly easier. If this is to be taken as true, then a patent-B should be granted, even though the “invention” does not really include an inventive step and thus can be deemed obvious, it does nonetheless improve the efficiency of an everyday job, and by extension, improves society.

In Lyon v. Bausch & Lomb, Justice Hand rightfully upheld the patent granted for a process that results in better lenses. The important thing to pull out of his opinion is as follows:

“The most competent workers in the field had for at least ten years been seeking a hardy, tenacious coating to prevent reflection; there had been a number of attempts, none satisfactory”

Justice Hand correctly noted that the industry was waiting for a process like that which was discovered, and though he gave other reasons as well, and as a result upheld the patent. Here is where I will argue my secondary point, that the long-felt need requirement should be included with an ‘or’ clause in 35 USC 103. If a certain industry is in need of something, then we should reward the person who meets that need with a patent.

Anderson’s Black Rock, Inc. v. Pavement Co. illustrates yet another point where a patent was rightfully denied, but a patent-B should have been rewarded. In this case, there was no long-felt and unmet need in the industry, it was simply a matter of convenience. Much like the case with the clay knob or the case with the grocer’s counter, this still shows an improvement. Such an improvement should be rewarded with a patent-B, as it benefits society. Obvious, yes, but still benefits society and thus should be rewarded.

In conclusion, I feel as though the improvements deemed obvious under 35 USC 103 should be given consideration for a different type of reward for their work, such as a patent-B. Patent-B should be seen as a prize for the Runner-Up, or a B+ on a test. Maybe the person did not in fact create an invention, as the improvement was obvious, but society still benefits from the improvement. In addition, as Justice Hand pointed out in the Lyon case, a long-felt need in the industry that becomes met should be rewarded with a patent. Thus I propose that the long-felt need in the industry clause be included in 35 USC 103 with an ‘or’ clause, so that either one being held true warrants a patent being granted.

[[Reiner v. I. Leon Co. (full text)]]

[[Reiner v. I. Leon Co.]]

[[South Corp. v. US (full text)]]

[[South Corp. v. US]]

BWC --- Non-Obviousness

2011-02-09T02:29:07Z

Bcastel1: Created page with "==Historical Development== The following are some cases through history that trace the evolution of what is currently the nonobviousness standard. ===Hotchkiss v. Greenwood (185..."

User:Bcastel1

2011-02-09T02:27:45Z

Bcastel1:

User:Bcastel1

2011-02-09T02:27:18Z

Bcastel1:

BWC --- HW 2.3

2011-02-04T01:22:57Z

Bcastel1:

The patent is invalid because:

Using '811 as the primary evidence against the validity of the patent issue at hand ('798), it is clear that the improvement from '811 to '798 was an obvious one. While a plow is not meant to deal with rocks, the provision was made to allow for it to safely move over such obstacles as rocks. This was a rather innovative move. However, the invention had a few problems with it, namely it's lateral instability. It is clear that the next logical step would be to use the same clamp but with more lateral stability, and it is also clear that this can be accomplished by giving the shank added support, as Graham did. While the added support does warrant praise for the advancement it provides for in the art of plowing, it does not deserve the limited monopoly that comes along with a patent.

The patent is valid because:

Once again using the '811 patent as the primary evidence, it is clear that the improvement from '811 to '798 was not obvious at the time of the invention. Perhaps the fishtailing described was not perceived as a disadvantage to some farmers, and thus the improvement would not have been on the top of their minds. With that thought in mind, one cannot decisively argue that the added lateral support was an obvious improvement. Perhaps the mechanism itself could not structurally support the additional material and needed to be tweaked, such as Graham did.

* In both of the above responses, the Pfeifer patent was not really considered as the relevance to the '798 patent was no where near as significant as the relevance between the '811 and the '798 patent was.

BWC --- HW 2.3

2011-02-04T01:22:40Z

Bcastel1: Created page with "The patent is invalid because: Using '811 as the primary evidence against the validity of the patent issue at hand ('798), it is clear that the improvement from '811 to '798 was..."

The patent is invalid because:

Using '811 as the primary evidence against the validity of the patent issue at hand ('798), it is clear that the improvement from '811 to '798 was an obvious one. While a plow is not meant to deal with rocks, the provision was made to allow for it to safely move over such obstacles as rocks. This was a rather innovative move. However, the invention had a few problems with it, namely it's lateral instability. It is clear that the next logical step would be to use the same clamp but with more lateral stability, and it is also clear that this can be accomplished by giving the shank added support, as Graham did. While the added support does warrant praise for the advancement it provides for in the art of plowing, it does not deserve the limited monopoly that comes along with a patent.

The patent is valid because:

Once again using the '811 patent as the primary evidence, it is clear that the improvement from '811 to '798 was not obvious at the time of the invention. Perhaps the fishtailing described was not perceived as a disadvantage to some farmers, and thus the improvement would not have been on the top of their minds. With that thought in mind, one cannot decisively argue that the added lateral support was an obvious improvement. Perhaps the mechanism itself could not structurally support the additional material and needed to be tweaked, such as Graham did.

** In both of the above responses, the Pfeifer patent was not really considered as the relevance to the '798 patent was no where near as significant as the relevance between the '811 and the '798 patent was.

User:Bcastel1

2011-02-04T01:14:11Z

Bcastel1:

User:Bcastel1

2011-01-29T21:10:11Z

Bcastel1:

BWC --- HW 1.28

2011-01-29T21:09:56Z

Bcastel1: Created page with "Homework 1.28 There are two references cited that pertain to the homework at hand. I will first discuss the relevant items in each document, and then apply the analysis of Hotchk..."

Homework 1.28
There are two references cited that pertain to the homework at hand. I will first discuss the relevant items in each document, and then apply the analysis of Hotchkiss and A&P to the patent that I’ve chosen and determine the patentability of my patent with all things considered.
Patent #2576981, herein referred to as Vogt, was filed in December 1951 by R. Vogt. In short, it is a winglet that is twisted like a propeller to gain a thrust advantage. At this time, it was well known to aerodynamicists that an end plate on a wing reduces the lift induced drag on a wing. However, such an end plate also results in an increase in total drag, as the resulting skin friction is greater than any improvement otherwise. A greatly contributing factor to this topic was a report filed in 1950 by NACA regarding various plates on the ends of wings. In short, engineers were researching ways to garner the benefits of reducing the lift-induced drag without paying an even greater penalty in the skin friction realm. Vogt’s solution was to design a propeller-like winglet that would account for the extra skin friction drag by producing a thrust vector, which when combined with the reduced lift-induced drag, would be of greater magnitude than the resulting increase in skin friction drag. Specifically
“It is a primary object of this invention to provide wing tip fin means capable of converting part of the energy in the top vortices of an airplane wing into useful thrust” – Vogt
Throughout Vogt, it becomes even more clear that this is the main object of his invention. While other consequences are noted, such as a beneficial reduction in wing bending moments at the root, they are not the primary aspect of this invention. There is little to no ( < 5 deg ) leading edge sweep present.
Patent #4245804, filed in January 1981 by Ishimitsu, also addresses the issue of optimizing a winglet structure. The main focus of this patent is to find a suitable winglet solution for high-speed aircraft. Nonetheless, there are still some applicable aspects of this document that should be considered when considering my patent. First, the winglet only extends upwards, and is a continuation of the wing rather than an attachment. This is done to prevent any unwanted shock waves from forming at the connection between the wing and the winglet. Second, the wing and winglet do not meet at a perpendicular angle, but rather stop short of it. Finally, there is a significant leading edge sweet ( 55-75 deg) present to benefit from a certain type of vortex flow. Ishimitsu states
“In this respect, it has been discovered that utilizing such a sweep angle generates a vortical flow pattern along the base of the tip fin which maintains boundary layer attachment during high speed flight to thereby prevent drag penalties that could at least offset the gains in aerodynamic efficiency effected by the invention” – Ishimitsu
While Ishimitsu does not directly address a wing operating at high coefficients of lift, the same principle would apply.
With the patent that I have chosen to analyze, Jupp and Rees try to address the problem of an effective winglet in high lift situations. They recognize that the winglet will not perform adequately in a high lift situation without some additional precautions being taken to account for separating flow. Vogt did not address this topic, but Ishimitsu did. Jupp and Rees use a high leading edge sweep winglet that extends both above and below the wing to provide the benefits of a winglet while not paying an excessive drag penalty.
Now I will apply the opinions from Hotchkiss to my patent in light of the previous discussion.
Justice Nelson held that substituting clay for metal or wood does not in itself deserve a patent. His analysis was that if such a trivial change was granted a patent, it would hinder the promotion of the sciences rather than benefit it. In light of this, I would argue that Jupp and Rees would not have been granted a patent for their invention for two reasons. First, the idea of a highly swept winglet was already disclosed by Ishimitsu. He discussed the benefit of sweeping a winglet to benefit from the resulting vortex flow. Even though he did not put it specifically in the context of a high lift scenario, the idea was still put forth nonetheless. The fact that Ishimitsu’s design called for the continuation of the wing rather than adding an attachment onto the wing has minimal impact at best. Justice Nelson would argue that the improvement from Ishimitsu and Vogt to Jupp and Rees was an obvious progress in the field of aerodynamics. To quote Justice Nelson
“It was the work of the skillful mechanic, not that of the inventor” – Justice Nelson
In the case with the A&P Tea Co., I also think that my present patent application would have got denied, for reasons already discussed. The effect of a highly swept winglet was already discussed by Ishimitsu, if by no one else. Whether or not Ishimitsu put the winglet above or below, or both, is not important, but rather trivial since the important part of his design, as quoted above, was to give the winglet a high leading edge sweep angle to garner the benefits of a vortical flow.
In conclusion, I feel as though the principles put forth in both cases would stand in the way of Jupp and Rees gaining a patent for their work as it truly does not present anything new, but rather, just a trivial change from prior art.

User:Bcastel1

2011-01-29T21:09:31Z

Bcastel1:

The patent I chose to use throughout the semester involves an improved design for a winglet. Specifically, the inventors, Jeff Jupp and Peter Rees, recognized that current designs for winglets, while they reduce the overall drag and performance, result in a heavier wing and thus could be improved. The instance of interest is when the wing is operating at high lift coefficients, and the flow detaches from the surface which also causes aircraft control problems. The design that Jupp and Rees have discovered consists of a winglet with a high sweep angle and low aspect ratio. The unique aspect with this design is that the flow does not break away from the surface in a conventional way, but rather jumps from conventional attached flow to vortex flow at high lift coefficients, thus not causing aircraft control problems. The application was filed on June 12, 1986 and granted on December 22, 1987.

[[BWC --- HW 1.28]]
Homework 1.28

There are two references cited that pertain to the homework at hand. I will first discuss the relevant items in each document, and then apply the analysis of Hotchkiss and A&P to the patent that I’ve chosen and determine the patentability of my patent with all things considered.

Patent #2576981, herein referred to as Vogt, was filed in December 1951 by R. Vogt. In short, it is a winglet that is twisted like a propeller to gain a thrust advantage. At this time, it was well known to aerodynamicists that an end plate on a wing reduces the lift induced drag on a wing. However, such an end plate also results in an increase in total drag, as the resulting skin friction is greater than any improvement otherwise. A greatly contributing factor to this topic was a report filed in 1950 by NACA regarding various plates on the ends of wings. In short, engineers were researching ways to garner the benefits of reducing the lift-induced drag without paying an even greater penalty in the skin friction realm. Vogt’s solution was to design a propeller-like winglet that would account for the extra skin friction drag by producing a thrust vector, which when combined with the reduced lift-induced drag, would be of greater magnitude than the resulting increase in skin friction drag. Specifically

“It is a primary object of this invention to provide wing tip fin means capable of converting part of the energy in the top vortices of an airplane wing into useful thrust” – Vogt

Throughout Vogt, it becomes even more clear that this is the main object of his invention. While other consequences are noted, such as a beneficial reduction in wing bending moments at the root, they are not the primary aspect of this invention. There is little to no ( < 5 deg ) leading edge sweep present.

Patent #4245804, filed in January 1981 by Ishimitsu, also addresses the issue of optimizing a winglet structure. The main focus of this patent is to find a suitable winglet solution for high-speed aircraft. Nonetheless, there are still some applicable aspects of this document that should be considered when considering my patent. First, the winglet only extends upwards, and is a continuation of the wing rather than an attachment. This is done to prevent any unwanted shock waves from forming at the connection between the wing and the winglet. Second, the wing and winglet do not meet at a perpendicular angle, but rather stop short of it. Finally, there is a significant leading edge sweet ( 55-75 deg) present to benefit from a certain type of vortex flow. Ishimitsu states

“In this respect, it has been discovered that utilizing such a sweep angle generates a vortical flow pattern along the base of the tip fin which maintains boundary layer attachment during high speed flight to thereby prevent drag penalties that could at least offset the gains in aerodynamic efficiency effected by the invention” – Ishimitsu

While Ishimitsu does not directly address a wing operating at high coefficients of lift, the same principle would apply.

With the patent that I have chosen to analyze, Jupp and Rees try to address the problem of an effective winglet in high lift situations. They recognize that the winglet will not perform adequately in a high lift situation without some additional precautions being taken to account for separating flow. Vogt did not address this topic, but Ishimitsu did. Jupp and Rees use a high leading edge sweep winglet that extends both above and below the wing to provide the benefits of a winglet while not paying an excessive drag penalty.

Now I will apply the opinions from Hotchkiss to my patent in light of the previous discussion.

Justice Nelson held that substituting clay for metal or wood does not in itself deserve a patent. His analysis was that if such a trivial change was granted a patent, it would hinder the promotion of the sciences rather than benefit it. In light of this, I would argue that Jupp and Rees would not have been granted a patent for their invention for two reasons. First, the idea of a highly swept winglet was already disclosed by Ishimitsu. He discussed the benefit of sweeping a winglet to benefit from the resulting vortex flow. Even though he did not put it specifically in the context of a high lift scenario, the idea was still put forth nonetheless. The fact that Ishimitsu’s design called for the continuation of the wing rather than adding an attachment onto the wing has minimal impact at best. Justice Nelson would argue that the improvement from Ishimitsu and Vogt to Jupp and Rees was an obvious progress in the field of aerodynamics. To quote Justice Nelson

“It was the work of the skillful mechanic, not that of the inventor” – Justice Nelson

In the case with the A&P Tea Co., I also think that my present patent application would have got denied, for reasons already discussed. The effect of a highly swept winglet was already discussed by Ishimitsu, if by no one else. Whether or not Ishimitsu put the winglet above or below, or both, is not important, but rather trivial since the important part of his design, as quoted above, was to give the winglet a high leading edge sweep angle to garner the benefits of a vortical flow.

In conclusion, I feel as though the principles put forth in both cases would stand in the way of Jupp and Rees gaining a patent for their work as it truly does not present anything new, but rather, just a trivial change from prior art.

User:Bcastel1

2011-01-29T21:07:01Z

Bcastel1:

The patent I chose to use throughout the semester involves an improved design for a winglet. Specifically, the inventors, Jeff Jupp and Peter Rees, recognized that current designs for winglets, while they reduce the overall drag and performance, result in a heavier wing and thus could be improved. The instance of interest is when the wing is operating at high lift coefficients, and the flow detaches from the surface which also causes aircraft control problems. The design that Jupp and Rees have discovered consists of a winglet with a high sweep angle and low aspect ratio. The unique aspect with this design is that the flow does not break away from the surface in a conventional way, but rather jumps from conventional attached flow to vortex flow at high lift coefficients, thus not causing aircraft control problems. The application was filed on June 12, 1986 and granted on December 22, 1987.

Homework 1.28

There are two references cited that pertain to the homework at hand. I will first discuss the relevant items in each document, and then apply the analysis of Hotchkiss and A&P to the patent that I’ve chosen and determine the patentability of my patent with all things considered.

Patent #2576981, herein referred to as Vogt, was filed in December 1951 by R. Vogt. In short, it is a winglet that is twisted like a propeller to gain a thrust advantage. At this time, it was well known to aerodynamicists that an end plate on a wing reduces the lift induced drag on a wing. However, such an end plate also results in an increase in total drag, as the resulting skin friction is greater than any improvement otherwise. A greatly contributing factor to this topic was a report filed in 1950 by NACA regarding various plates on the ends of wings. In short, engineers were researching ways to garner the benefits of reducing the lift-induced drag without paying an even greater penalty in the skin friction realm. Vogt’s solution was to design a propeller-like winglet that would account for the extra skin friction drag by producing a thrust vector, which when combined with the reduced lift-induced drag, would be of greater magnitude than the resulting increase in skin friction drag. Specifically

“It is a primary object of this invention to provide wing tip fin means capable of converting part of the energy in the top vortices of an airplane wing into useful thrust” – Vogt

Throughout Vogt, it becomes even more clear that this is the main object of his invention. While other consequences are noted, such as a beneficial reduction in wing bending moments at the root, they are not the primary aspect of this invention. There is little to no ( < 5 deg ) leading edge sweep present.

Patent #4245804, filed in January 1981 by Ishimitsu, also addresses the issue of optimizing a winglet structure. The main focus of this patent is to find a suitable winglet solution for high-speed aircraft. Nonetheless, there are still some applicable aspects of this document that should be considered when considering my patent. First, the winglet only extends upwards, and is a continuation of the wing rather than an attachment. This is done to prevent any unwanted shock waves from forming at the connection between the wing and the winglet. Second, the wing and winglet do not meet at a perpendicular angle, but rather stop short of it. Finally, there is a significant leading edge sweet ( 55-75 deg) present to benefit from a certain type of vortex flow. Ishimitsu states

“In this respect, it has been discovered that utilizing such a sweep angle generates a vortical flow pattern along the base of the tip fin which maintains boundary layer attachment during high speed flight to thereby prevent drag penalties that could at least offset the gains in aerodynamic efficiency effected by the invention” – Ishimitsu

While Ishimitsu does not directly address a wing operating at high coefficients of lift, the same principle would apply.

With the patent that I have chosen to analyze, Jupp and Rees try to address the problem of an effective winglet in high lift situations. They recognize that the winglet will not perform adequately in a high lift situation without some additional precautions being taken to account for separating flow. Vogt did not address this topic, but Ishimitsu did. Jupp and Rees use a high leading edge sweep winglet that extends both above and below the wing to provide the benefits of a winglet while not paying an excessive drag penalty.

Now I will apply the opinions from Hotchkiss to my patent in light of the previous discussion.

Justice Nelson held that substituting clay for metal or wood does not in itself deserve a patent. His analysis was that if such a trivial change was granted a patent, it would hinder the promotion of the sciences rather than benefit it. In light of this, I would argue that Jupp and Rees would not have been granted a patent for their invention for two reasons. First, the idea of a highly swept winglet was already disclosed by Ishimitsu. He discussed the benefit of sweeping a winglet to benefit from the resulting vortex flow. Even though he did not put it specifically in the context of a high lift scenario, the idea was still put forth nonetheless. The fact that Ishimitsu’s design called for the continuation of the wing rather than adding an attachment onto the wing has minimal impact at best. Justice Nelson would argue that the improvement from Ishimitsu and Vogt to Jupp and Rees was an obvious progress in the field of aerodynamics. To quote Justice Nelson

“It was the work of the skillful mechanic, not that of the inventor” – Justice Nelson

In the case with the A&P Tea Co., I also think that my present patent application would have got denied, for reasons already discussed. The effect of a highly swept winglet was already discussed by Ishimitsu, if by no one else. Whether or not Ishimitsu put the winglet above or below, or both, is not important, but rather trivial since the important part of his design, as quoted above, was to give the winglet a high leading edge sweep angle to garner the benefits of a vortical flow.

In conclusion, I feel as though the principles put forth in both cases would stand in the way of Jupp and Rees gaining a patent for their work as it truly does not present anything new, but rather, just a trivial change from prior art.

User:Bcastel1

2011-01-24T16:33:11Z

Bcastel1: Created page with "The patent I chose to use throughout the semester involves an improved design for a winglet. Specifically, the inventors, Jeff Jupp and Peter Rees, recognized that current desig..."