Bill Goodwine's Wiki - User contributions [en]

User:Cbernhar/homework5.html

2011-03-23T15:16:21Z

Cbernhar:

= Homework 5: Printed Publication Case =

The case is Pfund vs. U.S. (1998) and was decided in the Federal Court of Claims. Pfund holds 3 patents, which are for methods of contacting submarines by sending laser signals up to a satellite in order to find the position of the vehicle and establish a narrow beam contact. They also cover said devices which are used in the method. Pfund holds that the U.S. is infringing upon these patents.

The part dealing with printed publication deals with only one patent, the '036 patent. The case holds that if the document became accessible more than one year prior to the filing, it is prior art, whereas if it was available within one year of the filing, it is only prior art if public access precludes the date of invention. Furthermore, the filing date is the presumptive date of invention, and the has the burden of producing evidence that the date of invention was sooner. In this case, the date that a document, Philco III, was accessible to the public was June 5, 1962 and the date of filing for the patent was July 2, 1962.

Only if the inventor conceived of the invention prior to the access date and if the inventor proceeded to work on and file the patent as diligently as possible from a date prior to the access date does the publication not count as prior art. The court found that Pfund had worked diligently from May 7, 1962 until July 2, 1962 and therefore the only question of prior art was whether or not the invention was conceived before June 5, 1962.

The law defines conception as occurring when only construction, not invention is required. In other words, there is nothing left to design, rather just the physical construction itself remains. The court found that for all but Claim 5 of the '036 patent, the concept document described and witnessed by a third party on May 7, 1962 shows that the invention was conceived before June 5, 1962. The defense argued that the concept document was not concrete enough because it does not fully specify things, calling for "appropriate" tracking systems and etc. However, the court found that by specifying "appropriate" tracking system, any person skilled in the art would likely have chosen the final specified system based on knowledge of the art, and that the concept document was still valid as evidence of conception.

For Claim 5, which relied on other claims in the patent, Pfund presented three separate documents: one which is a handwritten document, PX-26, depicting a point-to-point laser system with scanning by cross prisms. However, it does not disclose the elements of Claim 5, nor with cited articles and the document could one skilled in the art have produced the apparatus in Claim 5.

The next handwritten document, PX-27, contains two figures nearly identical to figures 1 and 2 in the '036 patent. However, the document is undated. In order to try and prove that the date of this document was before Philco III, Pfund produced another handwritten document, PX-28, which states "add figure 3." However, since there is no figure 3 in the patent, it appears as though PX-27 was the final design for his patent. Therefore, it is likely that PX-28 refers to an earlier draft than PX-27, and Pfund did not sufficiently prove the connection between the two documents, nor that PX-27 was in fact drafted before PX-28. Since Pfund could not prove that this, Philco III counts as prior art against Claim 5 in the '036 patent.

There is another publication which is written on optical communications with lasers, but it was found that this publication did not deal with or claim in a manner similar to the patent claims: the particular angle tracking manner, how acquisition and tracking would be accomplished, satellite and relay stations high above the earth's surface, and specific angle tracking structures. Because nothing in the printed publication described these elements in a way arranged as in the claims of the patent, they did not count as prior art. This is because in order to be prior art, every element of the claimed invention must be identically shown in a SINGLE reference, and MUST be arranged as in the claim under review.

User:Cbernhar/homework5.html

2011-03-23T15:10:33Z

Cbernhar: Created page with "= Homework 5: Printed Publication Case = The case is Pfund vs. U.S. (1998) and was decided in the Federal Court of Claims. Pfund holds 3 patents, which are for methods of contac..."

User:Cbernhar

2011-03-23T14:45:11Z

Cbernhar:

ESB Briefs

2011-03-04T14:30:31Z

Cbernhar:

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
#Sam Karch
#Kyle Tennant
#Steve Bonomo
#Kurt Riester
#Charles Bernhard
* Reply Brief for Petitioner. (Feb. 7, 1939)
#Cmadiga1
#90144463
#901422128
#jpotter2
#ewolz
#E W Hitchler
#Davin Sakamoto
#Kevin Godshall
#901479977
#Adam Letcher
* Brief for Respondents (Jan. 28, 1939)
#LMiller
#Josh Bradley
#Brobins
#Ebingle
#kyergler
#BCastel1
#Eric Leis
#Eddie Guilbeau
#Andrew McBride
#gallsup
* Brief for Petitioner. (Jan. 1939)
#Kschlax
#Andy Stulc
#Mzahm
#Rabot
#Peter Mitros
#Jacob Marmolejo
#Greg Torrisi
#Kevin Dacey
#Fernando Rodriguez
#Anthony Schlehuber

User:Cbernhar/homework2.html

2011-02-28T16:23:25Z

Cbernhar: /* Patentability Considering Lyon v. Bausch & Lomb, 224 F.2d 530 (1995) */

= Homework 2: Non-Obviousness, with Regards to 3 Cases =

==The Citations==

There are 4 citations in my patent:

[http://www.google.com/patents/about?id=Ty5AAAAAEBAJ "Patent 834399: Apparatus for cleaning hulls of ships"

[http://www.google.com/patents/about?id=rN1oAAAAEBAJ "Patent 3010420: Buoyant boat bottom brush"

[http://www.google.com/patents/about?id=hdouAAAAEBAJ "Patent 4407213: Cleaning implement for boats"

[http://www.google.com/patents/about?id=nwI4AAAAEBAJ "Patent 4648344:Boat hull cleaning device"

Three of the citations are patents held by other people, while the fourth citation is actually held by the same man who holds my chosen patent, and was only issued a year prior to my chosen patent.

The first citation is an older patent, issued in 1906, and describes a system of wires which go underneath the boat while it is in the water, to which a brush is attached on either side. They have inflatable areas, allowing them to be filled so that they are buoyant, and therefore rest against the boat hull while underwater. By moving the cables, one brush moves up the boat hull, while the other moves down, and reversing the motion reverses the directions, allowing for a scrubbing motion. The brushes are not large, so a significant movement up and down is necessary to reach the entire depth of the hull.

The second citation is a patent issued in 1961, and describes a brush, made of buoyant materials, with a long adjustable handle. The brush's buoyancy allows it to float upward and contact the hull, and the handle has two points of articulation so that it may bend and allow the user to stand closely next to the boat. The backside of the brush also has a squeegee on it, for scraping purposes. This brush is also not very large, once again requiring a significant up and down movement to cover the entire depth of the boat hull. It also includes a modification in which an elastic, inflatable member is added to the brush, to provide further buoyancy.

The third citation is a patent issued in 1983, and describes a brush and squeegee type apparatus attached to a long adjustable handle. This device, unlike the previous devices, is made up of a hollow stock, which allows certain portions of the cleaning implement (such as extra bristles or squeegee material) to be stored inside of the device when not in use. It is also used to adjust the buoyancy of the device by changing the level of water inside of the stock when one goes to clean the boat, allowing one to adjust the level for better efficiency when cleaning the hull. The handle is designed to bend at one point to allow the brush to float up and lie against the hull of the boat, and has second point of articulation where it is telescoping, allowing the length of the handle to change, in situations where a different length is needed to reach different parts of the boat. The brush is once again not very large, and requires the same significant up and down motion to cover the entire depth of the hull.

The final citation is a patent issued in 1987, a year prior to the issue of my patent, held by John Burgers, the man who holds my patent, and Ronald Setzer, who does not hold my patent. This patent is worrisome, for it is in most ways the exact same as my patent, with only a slight change. It consists of a device with along handle, and then a main section of material, long enough to run along the entire depth of the hull, made out of stainless steel with a thickness such that it can bend freely. Attached to the top surface of the steel is a scrubbing material, which can be used to clean the hull of the boat. In order to contour to the shape of the boat, several float devices are attached evenly to the underside of the steel, in this case small buoys made of PVC pipe. This bends the steel along the underside of the boat, allowing for scrubbing, and because it covers the entire depth of the hull, it does not take significant up and down movement to reach all areas of the boat.

==Patentability Considering Hotchkiss v. Greenwood, 52 U.S. 11 (1850)==

Hotchkiss v. Greenwood is considered the starting point for requirements beyond just technical novelty and utility in patent law. The matter in question was whether a patent about making knobs out of clay in a certain fashion was valid, where all the mechanical aspects and designs of the knob were not new, and making knobs out of clay was not new either, it was just that using clay in this one design had not yet been done. This made the device technically novel, as it had not been done before, and it had utility, as it was found to be better than other alternatives because it was cheaper, more durable, and aesthetically pleasing. Despite this, the court decided that the patent was not valid, deciding that the improvement was a work of "a skilled mechanic," and did not contain the quality of inventiveness that truly defined the spirit of the requirements to obtain a patent. This established a precedent that inventions needed to be more than just novel and useful, they must also have a quality about them that was not at once inherently obvious to anyone in the field.

In light of this decision, I would say that my patent holds valid in relation to the first three citations, but the fourth is a more difficult case. Certainly, in regards to the first citation, which uses a system of wires, with small brushes that may be inflated to become buoyant, I believe there are enough differences. Manipulation through the use of a handle, being able to stand solidly on a dock, is a key difference, but it is not as important I think as the shape and make of the cleaning device itself, which can cover the entire depth of the hull without being moved up and down. This means that the boat can be cleaned much more efficiently, as it covers much more area at once. Also, it is made of a buoyant material, rather than being inflatable, which poses some possible advantages, such as not having to fill it before use, and not carrying the risk of hitting something and puncturing the inflatable section, which would then not lift up to press against the boat, and therefore not scrubbing it. These are several key differences, which although perhaps at first sight may not be so groundbreaking, are clearly more efficient than the citation, and a large enough departure to have required some kind of inventiveness.

I would still say that my patent holds valid in light of the second citation, although they have more in common. This brush is made of buoyant material, but still contains the option for a version with an inflatable section, which would pose the same risks I outlined above. This brush also has a long handle, although this has points of articulation which my patent does not include. This is because the brush still has a small surface area, and therefore does not cover the entire depth of the hull, giving my patent a clear difference and advantage. The points of articulation may also be a disadvantage in design compared to my patent, as they are freely permitted to move to allow the brush to float up to the underside of the boat, they are also free to move when a man tries to scrub the bottom, perhaps not translating his motion very efficiently, and making it that much harder to clean the entire surface.

I believe that my patent holds valid despite the third citation. It is another brush with a long handle, although it is different from the rest of the devices in a few key ways, for better or worse. It has a handle, but unlike my patent or the previous, it not only bends at a point to allow the buoyant brush to contact the hull of the boat, it also has a telescoping end, allowing the length to be adjusted depending on which point of the boat someone is trying to reach, or perhaps for larger and smaller boats to make the task easier. This is an interesting improvement upon the past handle, but is still only necessary because of the small nature of the brush. In this way, my patent still holds an important distinction. It also speaks to the ingenuity in my patent's design if after three separately made devices, over the course of nearly 80 years, no one has made a cleaning surface capable of contacting the entire depth of the boat hull at once. Another key difference between my patent and the third citation is that the third citation does not use a buoyant material to make it float, rather, it uses a hollow chamber which, while not only holding extra cleaning devices, allows the brush to float up to the hull by filling it with certain amounts of water. This may seem an advantage, as it allows one to adjust the buoyancy rather easily, but the only reason that the device even needs to adjust buoyancy is because it does not contact the entire depth of the hull to begin with and therefore is actually a decided disadvantage to my patent's design.

The fourth citation is the most troublesome. In light of Hotchkiss v. Greenwood, I believe my patent could hold valid. Since they were in fact made by the same person, and both fall within about a year of being issued, it comes as no surprise that they are very similar. The main difference between the citation and my patent is the method of making the device buoyant to contour to the boat hull. Unlike the previous citations, the basic shape and length of the cleaning material is the same, meaning both contact the entire boat hull, making it very efficient. The only difference is in the use of buoyant material in my patent, versus the attached floats made of PVC on the citation. The decision of the court was that a simple substitution of material is certainly not valid. This is not the case between these two patents. However, the overall explanation of the decision is that it should have a measure of ingenuity or inventiveness, which would render it so that no random, yet skilled mechanic in the field could improve the device. Although replacing the floats by making the material itself buoyant may seem inventive at first, the idea of using buoyant material, rather than inflatable sections or other float type objects, is present in citations 2 and 3. It would not seem so far-fetched then, that some person in the field of "boat hull cleaning devices" would not see the third citation and immediately think that it would be simpler or more efficient to simply use a buoyant material instead of floats, as has been done in the past. However, there is a second change, in the way that the scrubbing material affixes to the steel of the third citation or the buoyant material of my patent. In my patent, the material is joined by fastening strips, instead of glue, and this allows the cleaning material to be detached when worn down and replaced, without replacing the device itself or having a difficult time trying to peel it away and then having to find the proper material to reattach it. This is, however mentioned in citation 3. Nonetheless, this makes two differences between citation 4 and my patent, and I believe that it would be enough to warrant an improvement of ingenuity, though it is a much closer case.

==Patentability Considering A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950)==

This case was about the validity of a patent for a counter for checking out items from a store, which had a device which could be pulled forward to bring goods to the checker, and then slid back into place without the goods going with it. All the technologies used in this patent were previously used, just not necessarily in combination as they were in this particular instance, with the only novelty of the device being an extension to the length of the counter. The court found that the patent was in fact not valid, because an extension of the counter was not inventive enough to make the device inventive, and the combination of old technologies was not more than the sum of their parts. The findings of this court establish that in order for a combination of old technologies to be considered inventive, even if technically novel in that they had never been combined and having utility in that they are useful together, the device made of them must exhibit some property which they do not individually exhibit. In other words, a new function, or a drastically unexpected improvement must be found in the combination in order for the patent to hold valid. With regards to the four citations in my patent, I do not believe there is a way that my chosen patent could hold valid based on this court's findings.

My patent does manage to hold valid in relation to the first citation. There is no buoyant material in the first citation, and it also operates on a basis of wires. This keeps my patent from being a combination of its technologies, and I think that it is quite clear the two are different, with my patent being the more effective, for reasons discussed above.

My patent probably does not hold valid in relation to the second citation, however. The buoyant material is introduced here, as well as using a handle instead of wires. Effectively, the difference then becomes the fact that my patent's material can bend in the proper way to allow a long shape which can contour to the bottom of the boat. I do not know for certain if this material was available at the time, but if it was, then certainly my patent appears to emulate this case in the fact that it would be using a combination of previously known technologies, with the only difference being an extension of the dimensions of the brush. Although it may be more efficient, and although it may be different enough in some sense to be considered novel and useful enough to secure a patent, by this court's strict standards, I do not believe any part of the device gives rise to a new functionality. There is no unexpected result of the combination. I find it difficult to believe that this court would find that my patent constituted a whole that was greater than the sum of its parts, even if they were cleverly assembled in a way that had not been done over the last 80 years. Unless my patent is using a material not known of at the time, in which case it would be patentable, as it would have a clearly new and inventive feature in being able to be buoyant and bend to fit the contour of the boat while being long enough to cover the whole thing.

Similarly, if my patent already cannot hold valid against the second citation, I do not think it could hold valid against the third. Whether the material my patent uses is made yet is still unknown to me, so it follows the same stipulation: if it was, my patent cannot hold valid, if it was not, then my patent could hold valid.

The fourth citation certainly eliminates the validity of my patent. The material, the last question of whether or not it was not just a combination of known parts or in fact had a very different technology not yet seen in it, is not used in the fourth citation, but effectively replaced, as the device manages the same contouring motion without it. In this case, I find my patent to be very much a combination of old technologies and ideas, with only substitutions to claim for novelty. In this case, I do not believe there is any way that my patent could hold valid.

==Patentability Considering Lyon v. Bausch & Lomb, 224 F.2d 530 (1955)==

Lyon v. Bausch & Lomb is a case under the new (at the time) non-obviousness clause, 35 USC 103. This clause returns to the standards of Hotchkiss v. Greenwood, in that it is a non-obvious improvement to someone skilled in the art, meaning that the change has to be inventive, even to those who are familiar with the subject matter. Another thing set by the clause is that it is irrelevant how the improvement or invention was made, whether by a single bright idea in a moment, or a long, laborious process over the course of years. Although this does not have much bearing on the previous cases discussed, it was important at the time, when a "flash of genius" test that specifically made it hard for people who worked on their invention over the course of years made it difficult to secure a valid patent. As such, I believe that this case falls closer in severity to Hotchkiss v. Greenwood, and not A. & P. Tea Co. v. Supermarket Corp. In essence, I believe that Hotchkiss v. Greenwood first established the idea of non-obviousness in a manner that was more defined and explainable, and over time, up to A. & P. Tea Co. v. Supermarket Corp., non-obviousness became a more "powerful" concept, in that it was harder and harder for people to have non-obvious ideas. Certainly, this can be observed in a sense from the "flash of genius" test, which would exclude people with worthwhile inventions securing a patent just because they did not come up with their idea all at once, but rather had to tinker and toil to make it work. Since the new clause struck down the "flash of genius" idea, I see it as more of a return to the initial interpretation of non-obviousness, in a way making it easier for new devices or combinations to be non-obvious. In this way, I believe that my chosen patent would hold valid under the decision of Lyon v. Bausch & Lomb, and therefore the non-obviousness clause.

==A Question Specifically Regarding the Fourth Citation==

In the end, however, I still have some question over the fourth citation in my patent, and my patent itself. Being made by the same person, and so close to one another, my patent was still issued, evidently being worthy of a patent according to the patent office, at the least. I have tried to search and see whether or not something like this would be valid if the two inventors were different, but I can't find anything or come to a conclusion. I suppose it is a question of whether or not my patent was able to be issued because it was truly worthy of it in light of the fourth citation, or whether that was possible because the holder of the fourth citation was the same person. I know that patents give exclusive rights to the holder of the patent, and I don't know if that is grounds to patent similar things based off of it. I would assume not, as the standards for obtaining a patent are designed as such that it does not matter who holds the older knowledge in a patent, or whether it has passed into public domain, but rather that the subject of the patent be new and useful enough to warrant it on its own. Therefore, just because someone holds a patent does not mean they can receive another valid patent for something similar which would be obvious. It was with this thinking in mind that I viewed the similarities and differences of citation 4 and my patent, and came to the conclusion that my patent was indeed different enough, though similar, to secure a patent in its own right. If this is in fact not true, then I suppose my reasoning could be wrong, and perhaps the device itself is too obvious to grant a patent. However, given no definitive answer yet, I stand by my reasoning.

Bilski brief list

2011-02-16T16:41:51Z

Cbernhar:

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
#901431645
#Aschlehube
#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)
#Andrew McBride
#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)
#Cbernhar
#Brief of Amicus Curiae Legal OnRamp in Support of Neither Party (Aug. 6, 2009)
#cmadiga1
#Fernando Rodriguez
#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
#kdacey
#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)
#Andrew Chipouras
#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
#John Gallagher
#Sam Karch
#Brief of Amicus Curiae Boston Patent Law Association in Support of Petitioners (Mar. 2, 2009)
#Kyle Tennant
#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

User:Cbernhar/homework4.html

2011-02-11T15:40:54Z

Cbernhar: /* Suggestion to Combine */

==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.

It is important to note that although an invention may be made of a combination of previously known elements, this is not inherently obvious according to the decisions of the courts. This was the case in US v. Adams, in which although wet batteries had been known of, no one thought that Adams' particular idea was useful or necessarily possible. In this case, Adams' patent was held valid, because it went directly against what most experts at the time considered obvious, and succeeded.

==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.

==Ordinary Skill in the Art==

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

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

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

[[South Corp. v. US]]

==Relationship with Novelty==
Although there are many things that can be made that would be technically novel, many of them would fall beyond the realm of what is patentable. This is the purpose of non-obviousness, and its relation to novelty. While novelty simply means if something is new, non-obviousness subtly deals with a different issue than the technical newness of a device. It is also much harder to accurately define at all times. Novelty is a seemingly simple concept, either the invention is new, or it is not. Non-obviousness does not seek to establish whether something is new, but rather whether or not it truly advances the arts, and is not so readily foreseeable an improvement as to be a simple chore for anyone in the field. This is why simply replacing a material in something does not make it patentable. The doorknob in Hotchkiss v. Greenwood was in fact new, in that its specific combination had never before been made, but it did not really advance the arts to simply make an object out of clay and mash all the elements together in the exact same fashion. Therefore, while novelty has to do with the technical newness of an invention, non-obviousness has more to do with the advancement of the field beyond the readily foreseeable future.

==The Inventive Step==
The Inventive Step is another expression for what we call non-obviousness. It is more prevalent in Europe, where it is used instead of the term non-obviousness, although they are basically identical. The expression is used to suggest that something patentable must have an element of invention to it, something that would be not be readily apparent to the standard worker skilled in the art. This is of course important, and is the basic premise of non-obviousness, but the expression and the interpretation of the word "invention" has shifted throughout the history of law, as discussed in the next section.

==Nonobviousness vs. Invention==

Invention in and of itself is not the easiest thing to define. To this end, non-obviousness was created in order to make a term which would have more formal definition, less open to interpretation and therefore more stable in the law. A good example of this is the interpretation of invention and inventiveness in the decade just prior to the creation of 35 USC 103. The emphasis of invention at this time was so great, that a type of test being used to evaluate whether an idea was inventive enough was the "Flash of Genius" test, in which the inventor had to prove that the idea for the patent had come all it once in a flash of genius. This effectively barred any so-called invention whose formulation had come as the result of long-time testing and tinkering from receiving a patent. It is worth noting that this is a very harsh standard, as many new inventions or ideas come as the result of months of work and careful experimentation, not just "Eureka!" moments. Therefore non-obviousness was made, in order to close the interpretation of invention and inventiveness from the law, and present a more formally defined idea. It is also worth noting that 35 USC 103 strikes down the "Flash of Genius" test, by stating that the manner in which the invention was made is irrelevant to its patentability, so long as it meets the standard of non-obviousness.

==The Importance of Non-Obviousness, with Regards to Constitutional Purpose==

The U.S. Constitution states that Congress has the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." This is the very purpose of all patent law. It seeks to promote the progress of the nation in science and useful arts, by encouraging innovation and invention within the fields. The patent itself is a trade-off, giving someone exclusive rights to an invention for a limited period of time, after which point it enters the public domain and may be used by anyone as a new base from which to further innovate. In this way, a delicate balance is struck. Without the protection of patent law, invention would be highly detrimental to the inventor, as they would watch all their effort and time waste away the instant someone found a way to duplicate it. What is the purpose of spending effort creating something new if your competitor will simply steal it immediately and not waste the resources to develop it himself? On the other hand, if no one is ever permitted to use the invention but the inventor himself, how can the industry grow? If only the inventor can use his own work forever, then only he can make improvements upon it or build upon his own knowledge, and the field outside of his company stagnates or must go to great lengths to develop a separate path of innovation. By granting limited-time rights to the holder of a patent not only is there incentive to innovate, in that you may profit off of your invention exclusively for a length of time, but the knowledge is then released and free to use so that the entire field might grow and become more advanced.

Non-obviousness is an important part of this Constitutional Purpose. It keeps things which do not truly advance the arts from becoming patentable. How detrimental would it be if someone were to make a brilliant new invention, like a car which allowed near-instant travel over long distances, and secure a patent, only for the next company to change something trivial such as the color of plastic in the dashboard and secure its own patent? What then of the next company, which would add a cup holder and patent it again? This series of ideas, although technically novel, does nothing to advance the field. If this were possible, each of these patents would restrict the field, in fact, by keeping the technology away from the public domain even longer by simply tweaking an insignificant feature and obtaining an entirely new exclusive right. This is directly contrary to the Constitutional Purpose, and it is why non-obviousness is so important. It keeps the careful balance employed by patent law in place, and furthers the advancement of science and useful arts. In the end, this benefits everyone, as it is the advancement of our country and the human race, which is arguably the purpose of all advancement in science and the useful arts.

User:Cbernhar/homework4.html

2011-02-11T15:31:47Z

Cbernhar: /* The Importance of Non-Obviousness, with Regards to Constitutional Purpose */

==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.

==Ordinary Skill in the Art==

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

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

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

[[South Corp. v. US]]

==Relationship with Novelty==
Although there are many things that can be made that would be technically novel, many of them would fall beyond the realm of what is patentable. This is the purpose of non-obviousness, and its relation to novelty. While novelty simply means if something is new, non-obviousness subtly deals with a different issue than the technical newness of a device. It is also much harder to accurately define at all times. Novelty is a seemingly simple concept, either the invention is new, or it is not. Non-obviousness does not seek to establish whether something is new, but rather whether or not it truly advances the arts, and is not so readily foreseeable an improvement as to be a simple chore for anyone in the field. This is why simply replacing a material in something does not make it patentable. The doorknob in Hotchkiss v. Greenwood was in fact new, in that its specific combination had never before been made, but it did not really advance the arts to simply make an object out of clay and mash all the elements together in the exact same fashion. Therefore, while novelty has to do with the technical newness of an invention, non-obviousness has more to do with the advancement of the field beyond the readily foreseeable future.

==The Inventive Step==
The Inventive Step is another expression for what we call non-obviousness. It is more prevalent in Europe, where it is used instead of the term non-obviousness, although they are basically identical. The expression is used to suggest that something patentable must have an element of invention to it, something that would be not be readily apparent to the standard worker skilled in the art. This is of course important, and is the basic premise of non-obviousness, but the expression and the interpretation of the word "invention" has shifted throughout the history of law, as discussed in the next section.

==Nonobviousness vs. Invention==

Invention in and of itself is not the easiest thing to define. To this end, non-obviousness was created in order to make a term which would have more formal definition, less open to interpretation and therefore more stable in the law. A good example of this is the interpretation of invention and inventiveness in the decade just prior to the creation of 35 USC 103. The emphasis of invention at this time was so great, that a type of test being used to evaluate whether an idea was inventive enough was the "Flash of Genius" test, in which the inventor had to prove that the idea for the patent had come all it once in a flash of genius. This effectively barred any so-called invention whose formulation had come as the result of long-time testing and tinkering from receiving a patent. It is worth noting that this is a very harsh standard, as many new inventions or ideas come as the result of months of work and careful experimentation, not just "Eureka!" moments. Therefore non-obviousness was made, in order to close the interpretation of invention and inventiveness from the law, and present a more formally defined idea. It is also worth noting that 35 USC 103 strikes down the "Flash of Genius" test, by stating that the manner in which the invention was made is irrelevant to its patentability, so long as it meets the standard of non-obviousness.

==The Importance of Non-Obviousness, with Regards to Constitutional Purpose==

The U.S. Constitution states that Congress has the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." This is the very purpose of all patent law. It seeks to promote the progress of the nation in science and useful arts, by encouraging innovation and invention within the fields. The patent itself is a trade-off, giving someone exclusive rights to an invention for a limited period of time, after which point it enters the public domain and may be used by anyone as a new base from which to further innovate. In this way, a delicate balance is struck. Without the protection of patent law, invention would be highly detrimental to the inventor, as they would watch all their effort and time waste away the instant someone found a way to duplicate it. What is the purpose of spending effort creating something new if your competitor will simply steal it immediately and not waste the resources to develop it himself? On the other hand, if no one is ever permitted to use the invention but the inventor himself, how can the industry grow? If only the inventor can use his own work forever, then only he can make improvements upon it or build upon his own knowledge, and the field outside of his company stagnates or must go to great lengths to develop a separate path of innovation. By granting limited-time rights to the holder of a patent not only is there incentive to innovate, in that you may profit off of your invention exclusively for a length of time, but the knowledge is then released and free to use so that the entire field might grow and become more advanced.

Non-obviousness is an important part of this Constitutional Purpose. It keeps things which do not truly advance the arts from becoming patentable. How detrimental would it be if someone were to make a brilliant new invention, like a car which allowed near-instant travel over long distances, and secure a patent, only for the next company to change something trivial such as the color of plastic in the dashboard and secure its own patent? What then of the next company, which would add a cup holder and patent it again? This series of ideas, although technically novel, does nothing to advance the field. If this were possible, each of these patents would restrict the field, in fact, by keeping the technology away from the public domain even longer by simply tweaking an insignificant feature and obtaining an entirely new exclusive right. This is directly contrary to the Constitutional Purpose, and it is why non-obviousness is so important. It keeps the careful balance employed by patent law in place, and furthers the advancement of science and useful arts. In the end, this benefits everyone, as it is the advancement of our country and the human race, which is arguably the purpose of all advancement in science and the useful arts.

User:Cbernhar/homework4.html

2011-02-11T15:28:32Z

Cbernhar:

==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.

==Ordinary Skill in the Art==

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

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

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

[[South Corp. v. US]]

==Relationship with Novelty==
Although there are many things that can be made that would be technically novel, many of them would fall beyond the realm of what is patentable. This is the purpose of non-obviousness, and its relation to novelty. While novelty simply means if something is new, non-obviousness subtly deals with a different issue than the technical newness of a device. It is also much harder to accurately define at all times. Novelty is a seemingly simple concept, either the invention is new, or it is not. Non-obviousness does not seek to establish whether something is new, but rather whether or not it truly advances the arts, and is not so readily foreseeable an improvement as to be a simple chore for anyone in the field. This is why simply replacing a material in something does not make it patentable. The doorknob in Hotchkiss v. Greenwood was in fact new, in that its specific combination had never before been made, but it did not really advance the arts to simply make an object out of clay and mash all the elements together in the exact same fashion. Therefore, while novelty has to do with the technical newness of an invention, non-obviousness has more to do with the advancement of the field beyond the readily foreseeable future.

==The Inventive Step==
The Inventive Step is another expression for what we call non-obviousness. It is more prevalent in Europe, where it is used instead of the term non-obviousness, although they are basically identical. The expression is used to suggest that something patentable must have an element of invention to it, something that would be not be readily apparent to the standard worker skilled in the art. This is of course important, and is the basic premise of non-obviousness, but the expression and the interpretation of the word "invention" has shifted throughout the history of law, as discussed in the next section.

==Nonobviousness vs. Invention==

Invention in and of itself is not the easiest thing to define. To this end, non-obviousness was created in order to make a term which would have more formal definition, less open to interpretation and therefore more stable in the law. A good example of this is the interpretation of invention and inventiveness in the decade just prior to the creation of 35 USC 103. The emphasis of invention at this time was so great, that a type of test being used to evaluate whether an idea was inventive enough was the "Flash of Genius" test, in which the inventor had to prove that the idea for the patent had come all it once in a flash of genius. This effectively barred any so-called invention whose formulation had come as the result of long-time testing and tinkering from receiving a patent. It is worth noting that this is a very harsh standard, as many new inventions or ideas come as the result of months of work and careful experimentation, not just "Eureka!" moments. Therefore non-obviousness was made, in order to close the interpretation of invention and inventiveness from the law, and present a more formally defined idea. It is also worth noting that 35 USC 103 strikes down the "Flash of Genius" test, by stating that the manner in which the invention was made is irrelevant to its patentability, so long as it meets the standard of non-obviousness.

==The Importance of Non-Obviousness, with Regards to Constitutional Purpose==

The U.S. Constitution states that Congress has the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." This is the very purpose of all patent law. It seeks to promote the progress of the nation in science and useful arts, by encouraging innovation and invention within the fields. The patent itself is a trade-off, giving someone exclusive rights to an invention for a limited period of time, after which point it enters the public domain and may be used by anyone as a new base from which to further innovate. In this way, a delicate balance is struck. Without the protection of patent law, invention would be highly detrimental to the inventor, as they would watch all their effort and time waste away the instant someone found a way to duplicate it. What is the purpose of spending effort creating something new if your competitor will simply steal it immediately and not waste the resources to develop it himself? On the other hand, if no one is ever permitted to use the invention but the inventor himself, how can the industry grow? If only the inventor can use his own work forever, then only he can make improvements upon it or build upon his own knowledge, and the field outside of his company stagnates or must go to great lengths to develop a separate path of innovation. By granting limited-time rights to the holder of a patent not only is there incentive to innovate, in that you may profit off of your invention exclusively for a length of time, but the knowledge is then released and free to use so that the entire field might grow and become more advanced.

Non-obviousness is an important part of this Constitutional Purpose. It keeps things which do not truly advance the arts from becoming patentable. How detrimental would it be if someone were to make a brilliant new invention, like a car which allowed near-instant travel over long distances, and secure a patent, only for the next company to change something trivial such as the color of plastic in the dashboard and secure its own patent? What then of the next company, which would add a cup holder and patent it again? This series of ideas, although technically novel, does nothing to advance the field. If this were possible, each of these patents would restrict the field, in fact, by keeping the technology away from the public domain even longer by simply tweaking an insignificant feature and obtaining an entirely new exclusive right.

User:Cbernhar/homework4.html

2011-02-11T14:33:03Z

Cbernhar: 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:Cbernhar

2011-02-11T14:32:52Z

Cbernhar:

User:Cbernhar/homework3.html

2011-02-04T15:29:39Z

Cbernhar:

= Homework 3: Arguments on Non-Obviousness in Graham v. John Deere =

The patent in question:

[http://www.google.com/patents?id=2MVtAAAAEBAJ&printsec=abstract&zoom=4&source=gbs_overview_r&cad=0#v=onepage&q&f=false Patent 2627798: Clamp for Vibrating Shank Plows]

The prior art:

[http://www.google.com/patents?id=0BZqAAAAEBAJ&printsec=abstract&zoom=4&source=gbs_overview_r&cad=0#v=onepage&q&f=false Patent 2493811: Vibrating Plow and Mounting Therefor]

[http://www.google.com/patents?id=kuhhAAAAEBAJ&printsec=abstract&zoom=4&source=gbs_overview_r&cad=0#v=onepage&q&f=false Patent 2739518: Shank Holder]

== Arguments for Obviousness ==

When taking into account the prior art of both Graham's previous patent, 2493811, and the so-called "Glencoe Clamp," 2739518, it must be seen that Graham's most recent patent, 2627798, is invalid. Although '798 is useful and technically novel, the improvements made are not sufficient to make it non-obvious to a person having ordinary skill in the art. '798 itself is simply an improvement upon the design of Graham's earlier work, '811. In this respect, the design of the two devices is very similar, with small changes. First, the hinge has been attached above the shank, as opposed to below, so that the shank itself no longer touches the base plate of the clamp. This was done to reduce the wear on the upper plate, as the shank would rub against it as it moved up and down. Second, the shank is now secured to the hinge by a nut and bolt at the front, a stirrup at the rear and the spring rod passing through a slot, as opposed to only the spring rod. These additions provided more attachments between the hinge and shank, which lowered the stress and wear on the spring rod. Graham's claims made a point that these attachments also maintained continuous contact between the two components, shank and hinge. These changes certainly set '798 apart from '811, but whether the changes are non-obvious is not so clear. It would seem apparent from a simple analysis of '811 that as the shank moves it would wear against the plate. The easiest solution, one would then think, is to change its placement so that it could not. How simple a solution, then, to simply flip the shank and hinge over, and the parts no longer contact. As for the extra attachments, adding a nut and bolt to secure it at the front and stirrup at the rear are hardly impressive changes.

Add to the fact that there is another prior art, the Glencoe Clamp. Although the Glencoe Clamp appears at first glance to be different, having its hinge below the shank, and not having the spring rod go through both the shank and hinge, it can be seen that mechanically, they both accomplish the same purpose of improving upon '811. Despite the hinge being located below the shank, it can be seen that its placement allows the shank to move without contacting the upper plate, which was precisely the purpose of Graham's first change in '798. Likewise, although the spring rod does not go through both shank and hinge, this does not change the way that the machine moves, and in fact, the attachment of the shank to the hinge is accomplished by a stirrup in the rear and a nut and bolt at the front end of the shank, just as in '798. Graham's goal of reducing the wear on both parts is easily met by this device, which does not allow contact between the upper plate and shank, and attaches the shank to the hinge without even using the spring rod. Likewise, Graham's emphasis in changing his claim to state that '798 maintained continuous contact between shank and hinge is met by the Glencoe Clamp, with the exact same attachments. Therefore, a patent which seemed to be barely enough of an improvement over its predecessor, now becomes entirely obvious. A device which accomplished the desired goal of the changes in a mechanically equivalent fashion was already made before Graham patented his own solution. Furthermore, since it was made earlier, one can assume then that Graham's non-obvious changes were in fact quite obvious, as another company was able to look upon and improve his previous iteration in under 5 short years. There can be no doubt then, that '798 is obvious, and therefore, an invalid patent.

== Arguments for Non-Obviousness ==

Although '798 is similar to '811, it has two significant changes in the switching of the shank and hinge plate, and the attachment of the one to the other. These are a much needed solution to the problem of wearing out both the upper plate and spring rod, two important components to the design of the plow. Furthermore, these parts can be difficult and expensive to replace. '798 solves these problems in a novel and not entirely obvious fashion. Although switching the placement of shank and hinge may at first seem an entirely mundane task, it requires a different design in order to effectively achieve the same plowing ability. Without sandwiching the shank between the hinge and upper plate, it needed to be attached in a different manner in order to maintain the same functionality. This required the nut and bolt assembly, as well as the stirrup, which were not carelessly put on, but rather also chosen in order to take stress off of the spring rod. Likewise, although simply flipping a part over may seem simple, where the hinge attached on the clamp casing and the point it would swing around are important design decisions, which are essential the operation of the new device.

The Glencoe Clamp, then, is the only prior art left to consider. Although the Glencoe clamp may accomplish the same purpose, it does in fact utilize a different design. Furthermore, this design restricts the length of the shank that is attached to the hinge, which is inferior to the design of '798. Because the shank not only maintains continuous contact between itself and the hinge, but also maintains it the entire length of the hinge itself, it is more resistant to breakage. This allows a better absorption of the impact forces generated when the plow hits larger rocks, as there is in an increased flexion allowed along the longer length, which prevents the stress from focusing at a smaller point and creating a fracture. This is in fact not a minor point, as the entire purpose of the changes in '798 was to reduce wear, in order to prevent failure. A fracture would indeed be a failure, and '798 accomplishes this better than the Glencoe Clamp, by using its own design that the Glencoe Clamp mimics mechanically in certain respects, but does not actually duplicate or achieve. Because of this, '798 is substantially different from both '811 and the Glencoe Clamp, and the choice of its design, although subtle, can be seen to have a purpose with not inherently obvious benefits, and therefore must be a valid patent.

User:Cbernhar/homework3.html

2011-02-04T15:15:07Z

Cbernhar:

User:Cbernhar/homework3.html

2011-02-04T14:41:00Z

Cbernhar:

User:Cbernhar/homework3.html

2011-02-04T14:37:58Z

Cbernhar: Created page with "= Homework 3: Arguments on Non-Obviousness in Graham v. John Deere = The patent in question: [http://www.google.com/patents?id=2MVtAAAAEBAJ&printsec=abstract&zoom=4&source=gbs_..."

User:Cbernhar

2011-02-04T14:34:31Z

Cbernhar:

User:Cbernhar

2011-01-28T16:44:08Z

Cbernhar:

User:Cbernhar/homework2.html

2011-01-28T16:43:38Z

Cbernhar: Created page with "= Homework 2: Non-Obviousness, with Regards to 3 Cases = ==The Citations== There are 4 citations in my patent: [http://www.google.com/patents/about?id=Ty5AAAAAEBAJ "Patent 834..."

= Homework 2: Non-Obviousness, with Regards to 3 Cases =

==The Citations==

There are 4 citations in my patent:

[http://www.google.com/patents/about?id=Ty5AAAAAEBAJ "Patent 834399: Apparatus for cleaning hulls of ships"

[http://www.google.com/patents/about?id=rN1oAAAAEBAJ "Patent 3010420: Buoyant boat bottom brush"

[http://www.google.com/patents/about?id=hdouAAAAEBAJ "Patent 4407213: Cleaning implement for boats"

[http://www.google.com/patents/about?id=nwI4AAAAEBAJ "Patent 4648344:Boat hull cleaning device"

Three of the citations are patents held by other people, while the fourth citation is actually held by the same man who holds my chosen patent, and was only issued a year prior to my chosen patent.

The first citation is an older patent, issued in 1906, and describes a system of wires which go underneath the boat while it is in the water, to which a brush is attached on either side. They have inflatable areas, allowing them to be filled so that they are buoyant, and therefore rest against the boat hull while underwater. By moving the cables, one brush moves up the boat hull, while the other moves down, and reversing the motion reverses the directions, allowing for a scrubbing motion. The brushes are not large, so a significant movement up and down is necessary to reach the entire depth of the hull.

The second citation is a patent issued in 1961, and describes a brush, made of buoyant materials, with a long adjustable handle. The brush's buoyancy allows it to float upward and contact the hull, and the handle has two points of articulation so that it may bend and allow the user to stand closely next to the boat. The backside of the brush also has a squeegee on it, for scraping purposes. This brush is also not very large, once again requiring a significant up and down movement to cover the entire depth of the boat hull. It also includes a modification in which an elastic, inflatable member is added to the brush, to provide further buoyancy.

The third citation is a patent issued in 1983, and describes a brush and squeegee type apparatus attached to a long adjustable handle. This device, unlike the previous devices, is made up of a hollow stock, which allows certain portions of the cleaning implement (such as extra bristles or squeegee material) to be stored inside of the device when not in use. It is also used to adjust the buoyancy of the device by changing the level of water inside of the stock when one goes to clean the boat, allowing one to adjust the level for better efficiency when cleaning the hull. The handle is designed to bend at one point to allow the brush to float up and lie against the hull of the boat, and has second point of articulation where it is telescoping, allowing the length of the handle to change, in situations where a different length is needed to reach different parts of the boat. The brush is once again not very large, and requires the same significant up and down motion to cover the entire depth of the hull.

The final citation is a patent issued in 1987, a year prior to the issue of my patent, held by John Burgers, the man who holds my patent, and Ronald Setzer, who does not hold my patent. This patent is worrisome, for it is in most ways the exact same as my patent, with only a slight change. It consists of a device with along handle, and then a main section of material, long enough to run along the entire depth of the hull, made out of stainless steel with a thickness such that it can bend freely. Attached to the top surface of the steel is a scrubbing material, which can be used to clean the hull of the boat. In order to contour to the shape of the boat, several float devices are attached evenly to the underside of the steel, in this case small buoys made of PVC pipe. This bends the steel along the underside of the boat, allowing for scrubbing, and because it covers the entire depth of the hull, it does not take significant up and down movement to reach all areas of the boat.

==Patentability Considering Hotchkiss v. Greenwood, 52 U.S. 11 (1850)==

Hotchkiss v. Greenwood is considered the starting point for requirements beyond just technical novelty and utility in patent law. The matter in question was whether a patent about making knobs out of clay in a certain fashion was valid, where all the mechanical aspects and designs of the knob were not new, and making knobs out of clay was not new either, it was just that using clay in this one design had not yet been done. This made the device technically novel, as it had not been done before, and it had utility, as it was found to be better than other alternatives because it was cheaper, more durable, and aesthetically pleasing. Despite this, the court decided that the patent was not valid, deciding that the improvement was a work of "a skilled mechanic," and did not contain the quality of inventiveness that truly defined the spirit of the requirements to obtain a patent. This established a precedent that inventions needed to be more than just novel and useful, they must also have a quality about them that was not at once inherently obvious to anyone in the field.

In light of this decision, I would say that my patent holds valid in relation to the first three citations, but the fourth is a more difficult case. Certainly, in regards to the first citation, which uses a system of wires, with small brushes that may be inflated to become buoyant, I believe there are enough differences. Manipulation through the use of a handle, being able to stand solidly on a dock, is a key difference, but it is not as important I think as the shape and make of the cleaning device itself, which can cover the entire depth of the hull without being moved up and down. This means that the boat can be cleaned much more efficiently, as it covers much more area at once. Also, it is made of a buoyant material, rather than being inflatable, which poses some possible advantages, such as not having to fill it before use, and not carrying the risk of hitting something and puncturing the inflatable section, which would then not lift up to press against the boat, and therefore not scrubbing it. These are several key differences, which although perhaps at first sight may not be so groundbreaking, are clearly more efficient than the citation, and a large enough departure to have required some kind of inventiveness.

I would still say that my patent holds valid in light of the second citation, although they have more in common. This brush is made of buoyant material, but still contains the option for a version with an inflatable section, which would pose the same risks I outlined above. This brush also has a long handle, although this has points of articulation which my patent does not include. This is because the brush still has a small surface area, and therefore does not cover the entire depth of the hull, giving my patent a clear difference and advantage. The points of articulation may also be a disadvantage in design compared to my patent, as they are freely permitted to move to allow the brush to float up to the underside of the boat, they are also free to move when a man tries to scrub the bottom, perhaps not translating his motion very efficiently, and making it that much harder to clean the entire surface.

I believe that my patent holds valid despite the third citation. It is another brush with a long handle, although it is different from the rest of the devices in a few key ways, for better or worse. It has a handle, but unlike my patent or the previous, it not only bends at a point to allow the buoyant brush to contact the hull of the boat, it also has a telescoping end, allowing the length to be adjusted depending on which point of the boat someone is trying to reach, or perhaps for larger and smaller boats to make the task easier. This is an interesting improvement upon the past handle, but is still only necessary because of the small nature of the brush. In this way, my patent still holds an important distinction. It also speaks to the ingenuity in my patent's design if after three separately made devices, over the course of nearly 80 years, no one has made a cleaning surface capable of contacting the entire depth of the boat hull at once. Another key difference between my patent and the third citation is that the third citation does not use a buoyant material to make it float, rather, it uses a hollow chamber which, while not only holding extra cleaning devices, allows the brush to float up to the hull by filling it with certain amounts of water. This may seem an advantage, as it allows one to adjust the buoyancy rather easily, but the only reason that the device even needs to adjust buoyancy is because it does not contact the entire depth of the hull to begin with and therefore is actually a decided disadvantage to my patent's design.

The fourth citation is the most troublesome. In light of Hotchkiss v. Greenwood, I believe my patent could hold valid. Since they were in fact made by the same person, and both fall within about a year of being issued, it comes as no surprise that they are very similar. The main difference between the citation and my patent is the method of making the device buoyant to contour to the boat hull. Unlike the previous citations, the basic shape and length of the cleaning material is the same, meaning both contact the entire boat hull, making it very efficient. The only difference is in the use of buoyant material in my patent, versus the attached floats made of PVC on the citation. The decision of the court was that a simple substitution of material is certainly not valid. This is not the case between these two patents. However, the overall explanation of the decision is that it should have a measure of ingenuity or inventiveness, which would render it so that no random, yet skilled mechanic in the field could improve the device. Although replacing the floats by making the material itself buoyant may seem inventive at first, the idea of using buoyant material, rather than inflatable sections or other float type objects, is present in citations 2 and 3. It would not seem so far-fetched then, that some person in the field of "boat hull cleaning devices" would not see the third citation and immediately think that it would be simpler or more efficient to simply use a buoyant material instead of floats, as has been done in the past. However, there is a second change, in the way that the scrubbing material affixes to the steel of the third citation or the buoyant material of my patent. In my patent, the material is joined by fastening strips, instead of glue, and this allows the cleaning material to be detached when worn down and replaced, without replacing the device itself or having a difficult time trying to peel it away and then having to find the proper material to reattach it. This is, however mentioned in citation 3. Nonetheless, this makes two differences between citation 4 and my patent, and I believe that it would be enough to warrant an improvement of ingenuity, though it is a much closer case.

==Patentability Considering A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950)==

This case was about the validity of a patent for a counter for checking out items from a store, which had a device which could be pulled forward to bring goods to the checker, and then slid back into place without the goods going with it. All the technologies used in this patent were previously used, just not necessarily in combination as they were in this particular instance, with the only novelty of the device being an extension to the length of the counter. The court found that the patent was in fact not valid, because an extension of the counter was not inventive enough to make the device inventive, and the combination of old technologies was not more than the sum of their parts. The findings of this court establish that in order for a combination of old technologies to be considered inventive, even if technically novel in that they had never been combined and having utility in that they are useful together, the device made of them must exhibit some property which they do not individually exhibit. In other words, a new function, or a drastically unexpected improvement must be found in the combination in order for the patent to hold valid. With regards to the four citations in my patent, I do not believe there is a way that my chosen patent could hold valid based on this court's findings.

My patent does manage to hold valid in relation to the first citation. There is no buoyant material in the first citation, and it also operates on a basis of wires. This keeps my patent from being a combination of its technologies, and I think that it is quite clear the two are different, with my patent being the more effective, for reasons discussed above.

My patent probably does not hold valid in relation to the second citation, however. The buoyant material is introduced here, as well as using a handle instead of wires. Effectively, the difference then becomes the fact that my patent's material can bend in the proper way to allow a long shape which can contour to the bottom of the boat. I do not know for certain if this material was available at the time, but if it was, then certainly my patent appears to emulate this case in the fact that it would be using a combination of previously known technologies, with the only difference being an extension of the dimensions of the brush. Although it may be more efficient, and although it may be different enough in some sense to be considered novel and useful enough to secure a patent, by this court's strict standards, I do not believe any part of the device gives rise to a new functionality. There is no unexpected result of the combination. I find it difficult to believe that this court would find that my patent constituted a whole that was greater than the sum of its parts, even if they were cleverly assembled in a way that had not been done over the last 80 years. Unless my patent is using a material not known of at the time, in which case it would be patentable, as it would have a clearly new and inventive feature in being able to be buoyant and bend to fit the contour of the boat while being long enough to cover the whole thing.

Similarly, if my patent already cannot hold valid against the second citation, I do not think it could hold valid against the third. Whether the material my patent uses is made yet is still unknown to me, so it follows the same stipulation: if it was, my patent cannot hold valid, if it was not, then my patent could hold valid.

The fourth citation certainly eliminates the validity of my patent. The material, the last question of whether or not it was not just a combination of known parts or in fact had a very different technology not yet seen in it, is not used in the fourth citation, but effectively replaced, as the device manages the same contouring motion without it. In this case, I find my patent to be very much a combination of old technologies and ideas, with only substitutions to claim for novelty. In this case, I do not believe there is any way that my patent could hold valid.

==Patentability Considering Lyon v. Bausch & Lomb, 224 F.2d 530 (1995)==

Lyon v. Bausch & Lomb is a case under the new (at the time) non-obviousness clause, 35 USC 103. This clause returns to the standards of Hotchkiss v. Greenwood, in that it is a non-obvious improvement to someone skilled in the art, meaning that the change has to be inventive, even to those who are familiar with the subject matter. Another thing set by the clause is that it is irrelevant how the improvement or invention was made, whether by a single bright idea in a moment, or a long, laborious process over the course of years. Although this does not have much bearing on the previous cases discussed, it was important at the time, when a "flash of genius" test that specifically made it hard for people who worked on their invention over the course of years made it difficult to secure a valid patent. As such, I believe that this case falls closer in severity to Hotchkiss v. Greenwood, and not A. & P. Tea Co. v. Supermarket Corp. In essence, I believe that Hotchkiss v. Greenwood first established the idea of non-obviousness in a manner that was more defined and explainable, and over time, up to A. & P. Tea Co. v. Supermarket Corp., non-obviousness became a more "powerful" concept, in that it was harder and harder for people to have non-obvious ideas. Certainly, this can be observed in a sense from the "flash of genius" test, which would exclude people with worthwhile inventions securing a patent just because they did not come up with their idea all at once, but rather had to tinker and toil to make it work. Since the new clause struck down the "flash of genius" idea, I see it as more of a return to the initial interpretation of non-obviousness, in a way making it easier for new devices or combinations to be non-obvious. In this way, I believe that my chosen patent would hold valid under the decision of Lyon v. Bausch & Lomb, and therefore the non-obviousness clause.

==A Question Specifically Regarding the Fourth Citation==

In the end, however, I still have some question over the fourth citation in my patent, and my patent itself. Being made by the same person, and so close to one another, my patent was still issued, evidently being worthy of a patent according to the patent office, at the least. I have tried to search and see whether or not something like this would be valid if the two inventors were different, but I can't find anything or come to a conclusion. I suppose it is a question of whether or not my patent was able to be issued because it was truly worthy of it in light of the fourth citation, or whether that was possible because the holder of the fourth citation was the same person. I know that patents give exclusive rights to the holder of the patent, and I don't know if that is grounds to patent similar things based off of it. I would assume not, as the standards for obtaining a patent are designed as such that it does not matter who holds the older knowledge in a patent, or whether it has passed into public domain, but rather that the subject of the patent be new and useful enough to warrant it on its own. Therefore, just because someone holds a patent does not mean they can receive another valid patent for something similar which would be obvious. It was with this thinking in mind that I viewed the similarities and differences of citation 4 and my patent, and came to the conclusion that my patent was indeed different enough, though similar, to secure a patent in its own right. If this is in fact not true, then I suppose my reasoning could be wrong, and perhaps the device itself is too obvious to grant a patent. However, given no definitive answer yet, I stand by my reasoning.

User:Cbernhar

2011-01-28T16:43:22Z

Cbernhar:

= Homework 1: Finding a Patent =

[http://www.google.com/patents/about?id=uoM9AAAAEBAJ '''Patent 4781139: One man manual boat hull cleaning device''']

Date issued: August 18, 1986
*The idea behind this patent was to create a device which could clean the bottom of a boat hull without necessitating lifting the boat out of the water or diving underneath while it is still in the water. The device consists of a long handle, capable of being held and manipulated by a person. At the end of the handle is a section made of a different material, with a length long enough to cover the surface of a boat hull from the water to the bottom of the hull. There is a scrubbing material attached to one side of this section, meant to go against the boat to achieve a cleaning affect. In order to form to the contours of the boat, the main material of this section is buoyant, so that it bends and sticks to the curvature of the boat.

= [http://controls.ame.nd.edu/mediawiki/index.php/User:Cbernhar/homework2.html Homework 2: Non-Obviousness, with Regards to 3 Cases] =

==The Citations==

There are 4 citations in my patent:

[http://www.google.com/patents/about?id=Ty5AAAAAEBAJ "Patent 834399: Apparatus for cleaning hulls of ships"

[http://www.google.com/patents/about?id=rN1oAAAAEBAJ "Patent 3010420: Buoyant boat bottom brush"

[http://www.google.com/patents/about?id=hdouAAAAEBAJ "Patent 4407213: Cleaning implement for boats"

[http://www.google.com/patents/about?id=nwI4AAAAEBAJ "Patent 4648344:Boat hull cleaning device"

Three of the citations are patents held by other people, while the fourth citation is actually held by the same man who holds my chosen patent, and was only issued a year prior to my chosen patent.

The first citation is an older patent, issued in 1906, and describes a system of wires which go underneath the boat while it is in the water, to which a brush is attached on either side. They have inflatable areas, allowing them to be filled so that they are buoyant, and therefore rest against the boat hull while underwater. By moving the cables, one brush moves up the boat hull, while the other moves down, and reversing the motion reverses the directions, allowing for a scrubbing motion. The brushes are not large, so a significant movement up and down is necessary to reach the entire depth of the hull.

The second citation is a patent issued in 1961, and describes a brush, made of buoyant materials, with a long adjustable handle. The brush's buoyancy allows it to float upward and contact the hull, and the handle has two points of articulation so that it may bend and allow the user to stand closely next to the boat. The backside of the brush also has a squeegee on it, for scraping purposes. This brush is also not very large, once again requiring a significant up and down movement to cover the entire depth of the boat hull. It also includes a modification in which an elastic, inflatable member is added to the brush, to provide further buoyancy.

The third citation is a patent issued in 1983, and describes a brush and squeegee type apparatus attached to a long adjustable handle. This device, unlike the previous devices, is made up of a hollow stock, which allows certain portions of the cleaning implement (such as extra bristles or squeegee material) to be stored inside of the device when not in use. It is also used to adjust the buoyancy of the device by changing the level of water inside of the stock when one goes to clean the boat, allowing one to adjust the level for better efficiency when cleaning the hull. The handle is designed to bend at one point to allow the brush to float up and lie against the hull of the boat, and has second point of articulation where it is telescoping, allowing the length of the handle to change, in situations where a different length is needed to reach different parts of the boat. The brush is once again not very large, and requires the same significant up and down motion to cover the entire depth of the hull.

The final citation is a patent issued in 1987, a year prior to the issue of my patent, held by John Burgers, the man who holds my patent, and Ronald Setzer, who does not hold my patent. This patent is worrisome, for it is in most ways the exact same as my patent, with only a slight change. It consists of a device with along handle, and then a main section of material, long enough to run along the entire depth of the hull, made out of stainless steel with a thickness such that it can bend freely. Attached to the top surface of the steel is a scrubbing material, which can be used to clean the hull of the boat. In order to contour to the shape of the boat, several float devices are attached evenly to the underside of the steel, in this case small buoys made of PVC pipe. This bends the steel along the underside of the boat, allowing for scrubbing, and because it covers the entire depth of the hull, it does not take significant up and down movement to reach all areas of the boat.

==Patentability Considering Hotchkiss v. Greenwood, 52 U.S. 11 (1850)==

Hotchkiss v. Greenwood is considered the starting point for requirements beyond just technical novelty and utility in patent law. The matter in question was whether a patent about making knobs out of clay in a certain fashion was valid, where all the mechanical aspects and designs of the knob were not new, and making knobs out of clay was not new either, it was just that using clay in this one design had not yet been done. This made the device technically novel, as it had not been done before, and it had utility, as it was found to be better than other alternatives because it was cheaper, more durable, and aesthetically pleasing. Despite this, the court decided that the patent was not valid, deciding that the improvement was a work of "a skilled mechanic," and did not contain the quality of inventiveness that truly defined the spirit of the requirements to obtain a patent. This established a precedent that inventions needed to be more than just novel and useful, they must also have a quality about them that was not at once inherently obvious to anyone in the field.

In light of this decision, I would say that my patent holds valid in relation to the first three citations, but the fourth is a more difficult case. Certainly, in regards to the first citation, which uses a system of wires, with small brushes that may be inflated to become buoyant, I believe there are enough differences. Manipulation through the use of a handle, being able to stand solidly on a dock, is a key difference, but it is not as important I think as the shape and make of the cleaning device itself, which can cover the entire depth of the hull without being moved up and down. This means that the boat can be cleaned much more efficiently, as it covers much more area at once. Also, it is made of a buoyant material, rather than being inflatable, which poses some possible advantages, such as not having to fill it before use, and not carrying the risk of hitting something and puncturing the inflatable section, which would then not lift up to press against the boat, and therefore not scrubbing it. These are several key differences, which although perhaps at first sight may not be so groundbreaking, are clearly more efficient than the citation, and a large enough departure to have required some kind of inventiveness.

I would still say that my patent holds valid in light of the second citation, although they have more in common. This brush is made of buoyant material, but still contains the option for a version with an inflatable section, which would pose the same risks I outlined above. This brush also has a long handle, although this has points of articulation which my patent does not include. This is because the brush still has a small surface area, and therefore does not cover the entire depth of the hull, giving my patent a clear difference and advantage. The points of articulation may also be a disadvantage in design compared to my patent, as they are freely permitted to move to allow the brush to float up to the underside of the boat, they are also free to move when a man tries to scrub the bottom, perhaps not translating his motion very efficiently, and making it that much harder to clean the entire surface.

I believe that my patent holds valid despite the third citation. It is another brush with a long handle, although it is different from the rest of the devices in a few key ways, for better or worse. It has a handle, but unlike my patent or the previous, it not only bends at a point to allow the buoyant brush to contact the hull of the boat, it also has a telescoping end, allowing the length to be adjusted depending on which point of the boat someone is trying to reach, or perhaps for larger and smaller boats to make the task easier. This is an interesting improvement upon the past handle, but is still only necessary because of the small nature of the brush. In this way, my patent still holds an important distinction. It also speaks to the ingenuity in my patent's design if after three separately made devices, over the course of nearly 80 years, no one has made a cleaning surface capable of contacting the entire depth of the boat hull at once. Another key difference between my patent and the third citation is that the third citation does not use a buoyant material to make it float, rather, it uses a hollow chamber which, while not only holding extra cleaning devices, allows the brush to float up to the hull by filling it with certain amounts of water. This may seem an advantage, as it allows one to adjust the buoyancy rather easily, but the only reason that the device even needs to adjust buoyancy is because it does not contact the entire depth of the hull to begin with and therefore is actually a decided disadvantage to my patent's design.

The fourth citation is the most troublesome. In light of Hotchkiss v. Greenwood, I believe my patent could hold valid. Since they were in fact made by the same person, and both fall within about a year of being issued, it comes as no surprise that they are very similar. The main difference between the citation and my patent is the method of making the device buoyant to contour to the boat hull. Unlike the previous citations, the basic shape and length of the cleaning material is the same, meaning both contact the entire boat hull, making it very efficient. The only difference is in the use of buoyant material in my patent, versus the attached floats made of PVC on the citation. The decision of the court was that a simple substitution of material is certainly not valid. This is not the case between these two patents. However, the overall explanation of the decision is that it should have a measure of ingenuity or inventiveness, which would render it so that no random, yet skilled mechanic in the field could improve the device. Although replacing the floats by making the material itself buoyant may seem inventive at first, the idea of using buoyant material, rather than inflatable sections or other float type objects, is present in citations 2 and 3. It would not seem so far-fetched then, that some person in the field of "boat hull cleaning devices" would not see the third citation and immediately think that it would be simpler or more efficient to simply use a buoyant material instead of floats, as has been done in the past. However, there is a second change, in the way that the scrubbing material affixes to the steel of the third citation or the buoyant material of my patent. In my patent, the material is joined by fastening strips, instead of glue, and this allows the cleaning material to be detached when worn down and replaced, without replacing the device itself or having a difficult time trying to peel it away and then having to find the proper material to reattach it. This is, however mentioned in citation 3. Nonetheless, this makes two differences between citation 4 and my patent, and I believe that it would be enough to warrant an improvement of ingenuity, though it is a much closer case.

==Patentability Considering A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950)==

This case was about the validity of a patent for a counter for checking out items from a store, which had a device which could be pulled forward to bring goods to the checker, and then slid back into place without the goods going with it. All the technologies used in this patent were previously used, just not necessarily in combination as they were in this particular instance, with the only novelty of the device being an extension to the length of the counter. The court found that the patent was in fact not valid, because an extension of the counter was not inventive enough to make the device inventive, and the combination of old technologies was not more than the sum of their parts. The findings of this court establish that in order for a combination of old technologies to be considered inventive, even if technically novel in that they had never been combined and having utility in that they are useful together, the device made of them must exhibit some property which they do not individually exhibit. In other words, a new function, or a drastically unexpected improvement must be found in the combination in order for the patent to hold valid. With regards to the four citations in my patent, I do not believe there is a way that my chosen patent could hold valid based on this court's findings.

My patent does manage to hold valid in relation to the first citation. There is no buoyant material in the first citation, and it also operates on a basis of wires. This keeps my patent from being a combination of its technologies, and I think that it is quite clear the two are different, with my patent being the more effective, for reasons discussed above.

My patent probably does not hold valid in relation to the second citation, however. The buoyant material is introduced here, as well as using a handle instead of wires. Effectively, the difference then becomes the fact that my patent's material can bend in the proper way to allow a long shape which can contour to the bottom of the boat. I do not know for certain if this material was available at the time, but if it was, then certainly my patent appears to emulate this case in the fact that it would be using a combination of previously known technologies, with the only difference being an extension of the dimensions of the brush. Although it may be more efficient, and although it may be different enough in some sense to be considered novel and useful enough to secure a patent, by this court's strict standards, I do not believe any part of the device gives rise to a new functionality. There is no unexpected result of the combination. I find it difficult to believe that this court would find that my patent constituted a whole that was greater than the sum of its parts, even if they were cleverly assembled in a way that had not been done over the last 80 years. Unless my patent is using a material not known of at the time, in which case it would be patentable, as it would have a clearly new and inventive feature in being able to be buoyant and bend to fit the contour of the boat while being long enough to cover the whole thing.

Similarly, if my patent already cannot hold valid against the second citation, I do not think it could hold valid against the third. Whether the material my patent uses is made yet is still unknown to me, so it follows the same stipulation: if it was, my patent cannot hold valid, if it was not, then my patent could hold valid.

The fourth citation certainly eliminates the validity of my patent. The material, the last question of whether or not it was not just a combination of known parts or in fact had a very different technology not yet seen in it, is not used in the fourth citation, but effectively replaced, as the device manages the same contouring motion without it. In this case, I find my patent to be very much a combination of old technologies and ideas, with only substitutions to claim for novelty. In this case, I do not believe there is any way that my patent could hold valid.

==Patentability Considering Lyon v. Bausch & Lomb, 224 F.2d 530 (1995)==

Lyon v. Bausch & Lomb is a case under the new (at the time) non-obviousness clause, 35 USC 103. This clause returns to the standards of Hotchkiss v. Greenwood, in that it is a non-obvious improvement to someone skilled in the art, meaning that the change has to be inventive, even to those who are familiar with the subject matter. Another thing set by the clause is that it is irrelevant how the improvement or invention was made, whether by a single bright idea in a moment, or a long, laborious process over the course of years. Although this does not have much bearing on the previous cases discussed, it was important at the time, when a "flash of genius" test that specifically made it hard for people who worked on their invention over the course of years made it difficult to secure a valid patent. As such, I believe that this case falls closer in severity to Hotchkiss v. Greenwood, and not A. & P. Tea Co. v. Supermarket Corp. In essence, I believe that Hotchkiss v. Greenwood first established the idea of non-obviousness in a manner that was more defined and explainable, and over time, up to A. & P. Tea Co. v. Supermarket Corp., non-obviousness became a more "powerful" concept, in that it was harder and harder for people to have non-obvious ideas. Certainly, this can be observed in a sense from the "flash of genius" test, which would exclude people with worthwhile inventions securing a patent just because they did not come up with their idea all at once, but rather had to tinker and toil to make it work. Since the new clause struck down the "flash of genius" idea, I see it as more of a return to the initial interpretation of non-obviousness, in a way making it easier for new devices or combinations to be non-obvious. In this way, I believe that my chosen patent would hold valid under the decision of Lyon v. Bausch & Lomb, and therefore the non-obviousness clause.

==A Question Specifically Regarding the Fourth Citation==

In the end, however, I still have some question over the fourth citation in my patent, and my patent itself. Being made by the same person, and so close to one another, my patent was still issued, evidently being worthy of a patent according to the patent office, at the least. I have tried to search and see whether or not something like this would be valid if the two inventors were different, but I can't find anything or come to a conclusion. I suppose it is a question of whether or not my patent was able to be issued because it was truly worthy of it in light of the fourth citation, or whether that was possible because the holder of the fourth citation was the same person. I know that patents give exclusive rights to the holder of the patent, and I don't know if that is grounds to patent similar things based off of it. I would assume not, as the standards for obtaining a patent are designed as such that it does not matter who holds the older knowledge in a patent, or whether it has passed into public domain, but rather that the subject of the patent be new and useful enough to warrant it on its own. Therefore, just because someone holds a patent does not mean they can receive another valid patent for something similar which would be obvious. It was with this thinking in mind that I viewed the similarities and differences of citation 4 and my patent, and came to the conclusion that my patent was indeed different enough, though similar, to secure a patent in its own right. If this is in fact not true, then I suppose my reasoning could be wrong, and perhaps the device itself is too obvious to grant a patent. However, given no definitive answer yet, I stand by my reasoning.

User:Cbernhar

2011-01-28T16:40:36Z

Cbernhar:

= Homework 1: Finding a Patent =

[http://www.google.com/patents/about?id=uoM9AAAAEBAJ '''Patent 4781139: One man manual boat hull cleaning device''']

Date issued: August 18, 1986
*The idea behind this patent was to create a device which could clean the bottom of a boat hull without necessitating lifting the boat out of the water or diving underneath while it is still in the water. The device consists of a long handle, capable of being held and manipulated by a person. At the end of the handle is a section made of a different material, with a length long enough to cover the surface of a boat hull from the water to the bottom of the hull. There is a scrubbing material attached to one side of this section, meant to go against the boat to achieve a cleaning affect. In order to form to the contours of the boat, the main material of this section is buoyant, so that it bends and sticks to the curvature of the boat.

= Homework 2: Non-Obviousness, with Regards to 3 Cases =

==The Citations==

There are 4 citations in my patent:

[http://www.google.com/patents/about?id=Ty5AAAAAEBAJ "Patent 834399: Apparatus for cleaning hulls of ships"

[http://www.google.com/patents/about?id=rN1oAAAAEBAJ "Patent 3010420: Buoyant boat bottom brush"

[http://www.google.com/patents/about?id=hdouAAAAEBAJ "Patent 4407213: Cleaning implement for boats"

[http://www.google.com/patents/about?id=nwI4AAAAEBAJ "Patent 4648344:Boat hull cleaning device"

Three of the citations are patents held by other people, while the fourth citation is actually held by the same man who holds my chosen patent, and was only issued a year prior to my chosen patent.

The first citation is an older patent, issued in 1906, and describes a system of wires which go underneath the boat while it is in the water, to which a brush is attached on either side. They have inflatable areas, allowing them to be filled so that they are buoyant, and therefore rest against the boat hull while underwater. By moving the cables, one brush moves up the boat hull, while the other moves down, and reversing the motion reverses the directions, allowing for a scrubbing motion. The brushes are not large, so a significant movement up and down is necessary to reach the entire depth of the hull.

The second citation is a patent issued in 1961, and describes a brush, made of buoyant materials, with a long adjustable handle. The brush's buoyancy allows it to float upward and contact the hull, and the handle has two points of articulation so that it may bend and allow the user to stand closely next to the boat. The backside of the brush also has a squeegee on it, for scraping purposes. This brush is also not very large, once again requiring a significant up and down movement to cover the entire depth of the boat hull. It also includes a modification in which an elastic, inflatable member is added to the brush, to provide further buoyancy.

The third citation is a patent issued in 1983, and describes a brush and squeegee type apparatus attached to a long adjustable handle. This device, unlike the previous devices, is made up of a hollow stock, which allows certain portions of the cleaning implement (such as extra bristles or squeegee material) to be stored inside of the device when not in use. It is also used to adjust the buoyancy of the device by changing the level of water inside of the stock when one goes to clean the boat, allowing one to adjust the level for better efficiency when cleaning the hull. The handle is designed to bend at one point to allow the brush to float up and lie against the hull of the boat, and has second point of articulation where it is telescoping, allowing the length of the handle to change, in situations where a different length is needed to reach different parts of the boat. The brush is once again not very large, and requires the same significant up and down motion to cover the entire depth of the hull.

The final citation is a patent issued in 1987, a year prior to the issue of my patent, held by John Burgers, the man who holds my patent, and Ronald Setzer, who does not hold my patent. This patent is worrisome, for it is in most ways the exact same as my patent, with only a slight change. It consists of a device with along handle, and then a main section of material, long enough to run along the entire depth of the hull, made out of stainless steel with a thickness such that it can bend freely. Attached to the top surface of the steel is a scrubbing material, which can be used to clean the hull of the boat. In order to contour to the shape of the boat, several float devices are attached evenly to the underside of the steel, in this case small buoys made of PVC pipe. This bends the steel along the underside of the boat, allowing for scrubbing, and because it covers the entire depth of the hull, it does not take significant up and down movement to reach all areas of the boat.

==Patentability Considering Hotchkiss v. Greenwood, 52 U.S. 11 (1850)==

Hotchkiss v. Greenwood is considered the starting point for requirements beyond just technical novelty and utility in patent law. The matter in question was whether a patent about making knobs out of clay in a certain fashion was valid, where all the mechanical aspects and designs of the knob were not new, and making knobs out of clay was not new either, it was just that using clay in this one design had not yet been done. This made the device technically novel, as it had not been done before, and it had utility, as it was found to be better than other alternatives because it was cheaper, more durable, and aesthetically pleasing. Despite this, the court decided that the patent was not valid, deciding that the improvement was a work of "a skilled mechanic," and did not contain the quality of inventiveness that truly defined the spirit of the requirements to obtain a patent. This established a precedent that inventions needed to be more than just novel and useful, they must also have a quality about them that was not at once inherently obvious to anyone in the field.

In light of this decision, I would say that my patent holds valid in relation to the first three citations, but the fourth is a more difficult case. Certainly, in regards to the first citation, which uses a system of wires, with small brushes that may be inflated to become buoyant, I believe there are enough differences. Manipulation through the use of a handle, being able to stand solidly on a dock, is a key difference, but it is not as important I think as the shape and make of the cleaning device itself, which can cover the entire depth of the hull without being moved up and down. This means that the boat can be cleaned much more efficiently, as it covers much more area at once. Also, it is made of a buoyant material, rather than being inflatable, which poses some possible advantages, such as not having to fill it before use, and not carrying the risk of hitting something and puncturing the inflatable section, which would then not lift up to press against the boat, and therefore not scrubbing it. These are several key differences, which although perhaps at first sight may not be so groundbreaking, are clearly more efficient than the citation, and a large enough departure to have required some kind of inventiveness.

I would still say that my patent holds valid in light of the second citation, although they have more in common. This brush is made of buoyant material, but still contains the option for a version with an inflatable section, which would pose the same risks I outlined above. This brush also has a long handle, although this has points of articulation which my patent does not include. This is because the brush still has a small surface area, and therefore does not cover the entire depth of the hull, giving my patent a clear difference and advantage. The points of articulation may also be a disadvantage in design compared to my patent, as they are freely permitted to move to allow the brush to float up to the underside of the boat, they are also free to move when a man tries to scrub the bottom, perhaps not translating his motion very efficiently, and making it that much harder to clean the entire surface.

I believe that my patent holds valid despite the third citation. It is another brush with a long handle, although it is different from the rest of the devices in a few key ways, for better or worse. It has a handle, but unlike my patent or the previous, it not only bends at a point to allow the buoyant brush to contact the hull of the boat, it also has a telescoping end, allowing the length to be adjusted depending on which point of the boat someone is trying to reach, or perhaps for larger and smaller boats to make the task easier. This is an interesting improvement upon the past handle, but is still only necessary because of the small nature of the brush. In this way, my patent still holds an important distinction. It also speaks to the ingenuity in my patent's design if after three separately made devices, over the course of nearly 80 years, no one has made a cleaning surface capable of contacting the entire depth of the boat hull at once. Another key difference between my patent and the third citation is that the third citation does not use a buoyant material to make it float, rather, it uses a hollow chamber which, while not only holding extra cleaning devices, allows the brush to float up to the hull by filling it with certain amounts of water. This may seem an advantage, as it allows one to adjust the buoyancy rather easily, but the only reason that the device even needs to adjust buoyancy is because it does not contact the entire depth of the hull to begin with and therefore is actually a decided disadvantage to my patent's design.

The fourth citation is the most troublesome. In light of Hotchkiss v. Greenwood, I believe my patent could hold valid. Since they were in fact made by the same person, and both fall within about a year of being issued, it comes as no surprise that they are very similar. The main difference between the citation and my patent is the method of making the device buoyant to contour to the boat hull. Unlike the previous citations, the basic shape and length of the cleaning material is the same, meaning both contact the entire boat hull, making it very efficient. The only difference is in the use of buoyant material in my patent, versus the attached floats made of PVC on the citation. The decision of the court was that a simple substitution of material is certainly not valid. This is not the case between these two patents. However, the overall explanation of the decision is that it should have a measure of ingenuity or inventiveness, which would render it so that no random, yet skilled mechanic in the field could improve the device. Although replacing the floats by making the material itself buoyant may seem inventive at first, the idea of using buoyant material, rather than inflatable sections or other float type objects, is present in citations 2 and 3. It would not seem so far-fetched then, that some person in the field of "boat hull cleaning devices" would not see the third citation and immediately think that it would be simpler or more efficient to simply use a buoyant material instead of floats, as has been done in the past. However, there is a second change, in the way that the scrubbing material affixes to the steel of the third citation or the buoyant material of my patent. In my patent, the material is joined by fastening strips, instead of glue, and this allows the cleaning material to be detached when worn down and replaced, without replacing the device itself or having a difficult time trying to peel it away and then having to find the proper material to reattach it. This is, however mentioned in citation 3. Nonetheless, this makes two differences between citation 4 and my patent, and I believe that it would be enough to warrant an improvement of ingenuity, though it is a much closer case.

==Patentability Considering A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950)==

This case was about the validity of a patent for a counter for checking out items from a store, which had a device which could be pulled forward to bring goods to the checker, and then slid back into place without the goods going with it. All the technologies used in this patent were previously used, just not necessarily in combination as they were in this particular instance, with the only novelty of the device being an extension to the length of the counter. The court found that the patent was in fact not valid, because an extension of the counter was not inventive enough to make the device inventive, and the combination of old technologies was not more than the sum of their parts. The findings of this court establish that in order for a combination of old technologies to be considered inventive, even if technically novel in that they had never been combined and having utility in that they are useful together, the device made of them must exhibit some property which they do not individually exhibit. In other words, a new function, or a drastically unexpected improvement must be found in the combination in order for the patent to hold valid. With regards to the four citations in my patent, I do not believe there is a way that my chosen patent could hold valid based on this court's findings.

My patent does manage to hold valid in relation to the first citation. There is no buoyant material in the first citation, and it also operates on a basis of wires. This keeps my patent from being a combination of its technologies, and I think that it is quite clear the two are different, with my patent being the more effective, for reasons discussed above.

My patent probably does not hold valid in relation to the second citation, however. The buoyant material is introduced here, as well as using a handle instead of wires. Effectively, the difference then becomes the fact that my patent's material can bend in the proper way to allow a long shape which can contour to the bottom of the boat. I do not know for certain if this material was available at the time, but if it was, then certainly my patent appears to emulate this case in the fact that it would be using a combination of previously known technologies, with the only difference being an extension of the dimensions of the brush. Although it may be more efficient, and although it may be different enough in some sense to be considered novel and useful enough to secure a patent, by this court's strict standards, I do not believe any part of the device gives rise to a new functionality. There is no unexpected result of the combination. I find it difficult to believe that this court would find that my patent constituted a whole that was greater than the sum of its parts, even if they were cleverly assembled in a way that had not been done over the last 80 years. Unless my patent is using a material not known of at the time, in which case it would be patentable, as it would have a clearly new and inventive feature in being able to be buoyant and bend to fit the contour of the boat while being long enough to cover the whole thing.

Similarly, if my patent already cannot hold valid against the second citation, I do not think it could hold valid against the third. Whether the material my patent uses is made yet is still unknown to me, so it follows the same stipulation: if it was, my patent cannot hold valid, if it was not, then my patent could hold valid.

The fourth citation certainly eliminates the validity of my patent. The material, the last question of whether or not it was not just a combination of known parts or in fact had a very different technology not yet seen in it, is not used in the fourth citation, but effectively replaced, as the device manages the same contouring motion without it. In this case, I find my patent to be very much a combination of old technologies and ideas, with only substitutions to claim for novelty. In this case, I do not believe there is any way that my patent could hold valid.

==Patentability Considering Lyon v. Bausch & Lomb, 224 F.2d 530 (1995)==

Lyon v. Bausch & Lomb is a case under the new (at the time) non-obviousness clause, 35 USC 103. This clause returns to the standards of Hotchkiss v. Greenwood, in that it is a non-obvious improvement to someone skilled in the art, meaning that the change has to be inventive, even to those who are familiar with the subject matter. Another thing set by the clause is that it is irrelevant how the improvement or invention was made, whether by a single bright idea in a moment, or a long, laborious process over the course of years. Although this does not have much bearing on the previous cases discussed, it was important at the time, when a "flash of genius" test that specifically made it hard for people who worked on their invention over the course of years made it difficult to secure a valid patent. As such, I believe that this case falls closer in severity to Hotchkiss v. Greenwood, and not A. & P. Tea Co. v. Supermarket Corp. In essence, I believe that Hotchkiss v. Greenwood first established the idea of non-obviousness in a manner that was more defined and explainable, and over time, up to A. & P. Tea Co. v. Supermarket Corp., non-obviousness became a more "powerful" concept, in that it was harder and harder for people to have non-obvious ideas. Certainly, this can be observed in a sense from the "flash of genius" test, which would exclude people with worthwhile inventions securing a patent just because they did not come up with their idea all at once, but rather had to tinker and toil to make it work. Since the new clause struck down the "flash of genius" idea, I see it as more of a return to the initial interpretation of non-obviousness, in a way making it easier for new devices or combinations to be non-obvious. In this way, I believe that my chosen patent would hold valid under the decision of Lyon v. Bausch & Lomb, and therefore the non-obviousness clause.

==A Question Specifically Regarding the Fourth Citation==

In the end, however, I still have some question over the fourth citation in my patent, and my patent itself. Being made by the same person, and so close to one another, my patent was still issued, evidently being worthy of a patent according to the patent office, at the least. I have tried to search and see whether or not something like this would be valid if the two inventors were different, but I can't find anything or come to a conclusion. I suppose it is a question of whether or not my patent was able to be issued because it was truly worthy of it in light of the fourth citation, or whether that was possible because the holder of the fourth citation was the same person. I know that patents give exclusive rights to the holder of the patent, and I don't know if that is grounds to patent similar things based off of it. I would assume not, as the standards for obtaining a patent are designed as such that it does not matter who holds the older knowledge in a patent, or whether it has passed into public domain, but rather that the subject of the patent be new and useful enough to warrant it on its own. Therefore, just because someone holds a patent does not mean they can receive another valid patent for something similar which would be obvious. It was with this thinking in mind that I viewed the similarities and differences of citation 4 and my patent, and came to the conclusion that my patent was indeed different enough, though similar, to secure a patent in its own right. If this is in fact not true, then I suppose my reasoning could be wrong, and perhaps the device itself is too obvious to grant a patent. However, given no definitive answer yet, I stand by my reasoning.

User:Cbernhar

2011-01-28T16:16:01Z

Cbernhar:

= Homework 1: Finding a Patent =

[http://www.google.com/patents/about?id=uoM9AAAAEBAJ '''Patent 4781139: One man manual boat hull cleaning device''']

Date issued: August 18, 1986
*The idea behind this patent was to create a device which could clean the bottom of a boat hull without necessitating lifting the boat out of the water or diving underneath while it is still in the water. The device consists of a long handle, capable of being held and manipulated by a person. At the end of the handle is a section made of a different material, with a length long enough to cover the surface of a boat hull from the water to the bottom of the hull. There is a scrubbing material attached to one side of this section, meant to go against the boat to achieve a cleaning affect. In order to form to the contours of the boat, the main material of this section is buoyant, so that it bends and sticks to the curvature of the boat.

= Homework 2: Non-Obviousness, with Regards to 3 Cases =

==The Citations==

There are 4 citations in my patent:

[http://www.google.com/patents/about?id=Ty5AAAAAEBAJ "Patent 834399: Apparatus for cleaning hulls of ships"

[http://www.google.com/patents/about?id=rN1oAAAAEBAJ "Patent 3010420: Buoyant boat bottom brush"

[http://www.google.com/patents/about?id=hdouAAAAEBAJ "Patent 4407213: Cleaning implement for boats"

[http://www.google.com/patents/about?id=nwI4AAAAEBAJ "Patent 4648344:Boat hull cleaning device"

Three of the citations are patents held by other people, while the fourth citation is actually held by the same man who holds my chosen patent, and was only issued a year prior to my chosen patent.

The first citation is an older patent, issued in 1906, and describes a system of wires which go underneath the boat while it is in the water, to which a brush is attached on either side. They have inflatable areas, allowing them to be filled so that they are buoyant, and therefore rest against the boat hull while underwater. By moving the cables, one brush moves up the boat hull, while the other moves down, and reversing the motion reverses the directions, allowing for a scrubbing motion. The brushes are not large, so a significant movement up and down is necessary to reach the entire depth of the hull.

The second citation is a patent issued in 1961, and describes a brush, made of buoyant materials, with a long adjustable handle. The brush's buoyancy allows it to float upward and contact the hull, and the handle has two points of articulation so that it may bend and allow the user to stand closely next to the boat. The backside of the brush also has a squeegee on it, for scraping purposes. This brush is also not very large, once again requiring a significant up and down movement to cover the entire depth of the boat hull. It also includes a modification in which an elastic, inflatable member is added to the brush, to provide further buoyancy.

The third citation is a patent issued in 1983, and describes a brush and squeegee type apparatus attached to a long adjustable handle. This device, unlike the previous devices, is made up of a hollow stock, which allows certain portions of the cleaning implement (such as extra bristles or squeegee material) to be stored inside of the device when not in use. It is also used to adjust the buoyancy of the device by changing the level of water inside of the stock when one goes to clean the boat, allowing one to adjust the level for better efficiency when cleaning the hull. The handle is designed to bend at one point to allow the brush to float up and lie against the hull of the boat, and has second point of articulation where it is telescoping, allowing the length of the handle to change, in situations where a different length is needed to reach different parts of the boat. The brush is once again not very large, and requires the same significant up and down motion to cover the entire depth of the hull.

The final citation is a patent issued in 1987, a year prior to the issue of my patent, held by John Burgers, the man who holds my patent, and Ronald Setzer, who does not hold my patent. This patent is worrisome, for it is in most ways the exact same as my patent, with only a slight change. It consists of a device with along handle, and then a main section of material, long enough to run along the entire depth of the hull, made out of stainless steel with a thickness such that it can bend freely. Attached to the top surface of the steel is a scrubbing material, which can be used to clean the hull of the boat. In order to contour to the shape of the boat, several float devices are attached evenly to the underside of the steel, in this case small buoys made of PVC pipe. This bends the steel along the underside of the boat, allowing for scrubbing, and because it covers the entire depth of the hull, it does not take significant up and down movement to reach all areas of the boat.

==Patentability Considering Hotchkiss v. Greenwood, 52 U.S. 11 (1850)==

Hotchkiss v. Greenwood is considered the starting point for requirements beyond just technical novelty and utility in patent law. The matter in question was whether a patent about making knobs out of clay in a certain fashion was valid, where all the mechanical aspects and designs of the knob were not new, and making knobs out of clay was not new either, it was just that using clay in this one design had not yet been done. This made the device technically novel, as it had not been done before, and it had utility, as it was found to be better than other alternatives because it was cheaper, more durable, and aesthetically pleasing. Despite this, the court decided that the patent was not valid, deciding that the improvement was a work of "a skilled mechanic," and did not contain the quality of inventiveness that truly defined the spirit of the requirements to obtain a patent. This established a precedent that inventions needed to be more than just novel and useful, they must also have a quality about them that was not at once inherently obvious to anyone in the field.

In light of this decision, I would say that my patent holds valid in relation to the first three citations, but the fourth is a more difficult case. Certainly, in regards to the first citation, which uses a system of wires, with small brushes that may be inflated to become buoyant, I believe there are enough differences. Manipulation through the use of a handle, being able to stand solidly on a dock, is a key difference, but it is not as important I think as the shape and make of the cleaning device itself, which can cover the entire depth of the hull without being moved up and down. This means that the boat can be cleaned much more efficiently, as it covers much more area at once. Also, it is made of a buoyant material, rather than being inflatable, which poses some possible advantages, such as not having to fill it before use, and not carrying the risk of hitting something and puncturing the inflatable section, which would then not lift up to press against the boat, and therefore not scrubbing it. These are several key differences, which although perhaps at first sight may not be so groundbreaking, are clearly more efficient than the citation, and a large enough departure to have required some kind of inventiveness.

I would still say that my patent holds valid in light of the second citation, although they have more in common. This brush is made of buoyant material, but still contains the option for a version with an inflatable section, which would pose the same risks I outlined above. This brush also has a long handle, although this has points of articulation which my patent does not include. This is because the brush still has a small surface area, and therefore does not cover the entire depth of the hull, giving my patent a clear difference and advantage. The points of articulation may also be a disadvantage in design compared to my patent, as they are freely permitted to move to allow the brush to float up to the underside of the boat, they are also free to move when a man tries to scrub the bottom, perhaps not translating his motion very efficiently, and making it that much harder to clean the entire surface.

I believe that my patent holds valid despite the third citation. It is another brush with a long handle, although it is different from the rest of the devices in a few key ways, for better or worse. It has a handle, but unlike my patent or the previous, it not only bends at a point to allow the buoyant brush to contact the hull of the boat, it also has a telescoping end, allowing the length to be adjusted depending on which point of the boat someone is trying to reach, or perhaps for larger and smaller boats to make the task easier. This is an interesting improvement upon the past handle, but is still only necessary because of the small nature of the brush. In this way, my patent still holds an important distinction. It also speaks to the ingenuity in my patent's design if after three separately made devices, over the course of nearly 80 years, no one has made a cleaning surface capable of contacting the entire depth of the boat hull at once. Another key difference between my patent and the third citation is that the third citation does not use a buoyant material to make it float, rather, it uses a hollow chamber which, while not only holding extra cleaning devices, allows the brush to float up to the hull by filling it with certain amounts of water. This may seem an advantage, as it allows one to adjust the buoyancy rather easily, but the only reason that the device even needs to adjust buoyancy is because it does not contact the entire depth of the hull to begin with and therefore is actually a decided disadvantage to my patent's design.

The fourth citation is the most troublesome. In light of Hotchkiss v. Greenwood, I believe my patent could hold valid. Since they were in fact made by the same person, and both fall within about a year of being issued, it comes as no surprise that they are very similar. The main difference between the citation and my patent is the method of making the device buoyant to contour to the boat hull. Unlike the previous citations, the basic shape and length of the cleaning material is the same, meaning both contact the entire boat hull, making it very efficient. The only difference is in the use of buoyant material in my patent, versus the attached floats made of PVC on the citation. The decision of the court was that a simple substitution of material is certainly not valid. This is not the case between these two patents. However, the overall explanation of the decision is that it should have a measure of ingenuity or inventiveness, which would render it so that no random, yet skilled mechanic in the field could improve the device. Although replacing the floats by making the material itself buoyant may seem inventive at first, the idea of using buoyant material, rather than inflatable sections or other float type objects, is present in citations 2 and 3. It would not seem so far-fetched then, that some person in the field of "boat hull cleaning devices" would not see the third citation and immediately think that it would be simpler or more efficient to simply use a buoyant material instead of floats, as has been done in the past. However, there is a second change, in the way that the scrubbing material affixes to the steel of the third citation or the buoyant material of my patent. In my patent, the material is joined by fastening strips, instead of glue, and this allows the cleaning material to be detached when worn down and replaced, without replacing the device itself or having a difficult time trying to peel it away and then having to find the proper material to reattach it. This is, however mentioned in citation 3. Nonetheless, this makes two differences between citation 4 and my patent, and I believe that it would be enough to warrant an improvement of ingenuity, though it is a much closer case.

==Patentability Considering A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950)==

This case was about the validity of a patent for a counter for checking out items from a store, which had a device which could be pulled forward to bring goods to the checker, and then slid back into place without the goods going with it. All the technologies used in this patent were previously used, just not necessarily in combination as they were in this particular instance, with the only novelty of the device being an extension to the length of the counter. The court found that the patent was in fact not valid, because an extension of the counter was not inventive enough to make the device inventive, and the combination of old technologies was not more than the sum of their parts. The findings of this court establish that in order for a combination of old technologies to be considered inventive, even if technically novel in that they had never been combined and having utility in that they are useful together, the device made of them must exhibit some property which they do not individually exhibit. In other words, a new function, or a drastically unexpected improvement must be found in the combination in order for the patent to hold valid. With regards to the four citations in my patent, I do not believe there is a way that my chosen patent could hold valid based on this court's findings.

My patent does manage to hold valid in relation to the first citation. There is no buoyant material in the first citation, and it also operates on a basis of wires. This keeps my patent from being a combination of its technologies, and I think that it is quite clear the two are different, with my patent being the more effective, for reasons discussed above.

My patent probably does not hold valid in relation to the second citation, however. The buoyant material is introduced here, as well as using a handle instead of wires. Effectively, the difference then becomes the fact that my patent's material can bend in the proper way to allow a long shape which can contour to the bottom of the boat. I do not know for certain if this material was available at the time, but if it was, then certainly my patent appears to emulate this case in the fact that it would be using a combination of previously known technologies, with the only difference being an extension of the dimensions of the brush. Although it may be more efficient, and although it may be different enough in some sense to be considered novel and useful enough to secure a patent, by this court's strict standards, I do not believe any part of the device gives rise to a new functionality. There is no unexpected result of the combination. I find it difficult to believe that this court would find that my patent constituted a whole that was greater than the sum of its parts, even if they were cleverly assembled in a way that had not been done over the last 80 years. Unless my patent is using a material not known of at the time, in which case it would be patentable, as it would have a clearly new and inventive feature in being able to be buoyant and bend to fit the contour of the boat while being long enough to cover the whole thing.

Similarly, if my patent already cannot hold valid against the second citation, I do not think it could hold valid against the third. Whether the material my patent uses is made yet is still unknown to me, so it follows the same stipulation: if it was, my patent cannot hold valid, if it was not, then my patent could hold valid.

The fourth citation certainly eliminates the validity of my patent. The material, the last question of whether or not it was not just a combination of known parts or in fact had a very different technology not yet seen in it, is not used in the fourth citation, but effectively replaced, as the device manages the same contouring motion without it. In this case, I find my patent to be very much a combination of old technologies and ideas, with only substitutions to claim for novelty. In this case, I do not believe there is any way that my patent could hold valid.

==Patentability Considering Lyon v. Bausch & Lomb, 224 F.2d 530 (1995)==

User:Cbernhar

2011-01-28T15:55:00Z

Cbernhar:

User:Cbernhar

2011-01-28T15:49:43Z

Cbernhar:

User:Cbernhar

2011-01-28T15:28:56Z

Cbernhar:

User:Cbernhar

2011-01-28T15:20:56Z

Cbernhar:

User:Cbernhar

2011-01-28T14:42:42Z