Bill Goodwine's Wiki - User contributions [en]

https://controls.ame.nd.edu/mediawiki/api.php?action=feedcontributions&feedformat=atom&user=E+W+Hitchler Bill Goodwine's Wiki - User contributions [en] 2026-10-07T10:25:42Z User contributions MediaWiki 1.44.2 https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=4598 User:E W Hitchler 2011-04-04T14:50:36Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> <br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> <br /> '''Hotchkiss v. Greenwood (1850)'''<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> <br /> '''A&P Tea v. Supermarket Equipment (1950)'''<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> <br /> '''35 USC 103 (1952)'''<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> <br /> '''Graham v. John Deere (1966)'''<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> The Graham v. John Deere case includes two different cases. There was the case that involved John Deere and mechanism for plows, but there was also the case that involved the tops of spray bottles.<br /> The patent for the Graham case related to a spring clamp that permitted plow shanks to be pushed upward as the plow was dragged through rocky soil terrain. The spring then forces the shanks back into postion once the mass is gone. The court did an engineering analysis and said that the patent was not valid because it failed the obviousness test. <br /> The other case involved the shipping design of sprayer caps. One cap engaged with a washer or gasket which rested on the upper surface and the cap screwed directly on the container. The court decided that the patent was not valid because it failed the non-obviousness test.<br /> <br /> '''U.S. v. Adams (1966)'''<br /> 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.<br /> The Adams case relates to an electrical battery that is non-rechargeable. The concept of the invention was that it was light in weight, provided constant voltage, needed no acids and it was operable in extreme cold and extreme hot conditions. However, the only down side was that once the battery was activated it can't be turned off. When Adams went to go present his invention, the government stated that what he was stating was absurd and it couldn't be done. However, in WWII, the government ended up using it and they never notified Adams and when Adams did find out and asked for compensation, he was denied. In the end, it was found that Adams patent was valid and what the government did was wrong. The government tried to say that his invention lacked novelty, even though his battery was water activated and no other battery was like his.<br /> <br /> '''Anderson's Black Rock v. Pavement Salvage (1969)'''<br /> 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 known elements can become patentable.<br /> This case involves the problem when one puts together existing ideas or concepts together in another way and if it can become patentable. The case specifically presents the "Means for Treating Bituminous Pavement." The problem was that when they use to put on new material there would be formation of cracks and dirt and water would enter causing deterioration. The patent uses an old technology which was used in 1905 to heat up asphalt. After that, the patent suggest to use a spreader for putting down bituminous material and then finally a tamper and screed for shaping the new material. The respondent explained that the patent uses a combo of prior art, for a new and useful concept to get rid of a cold joint. At the end of the case, the final verdict was that it was not an invention by the obvious and non-obviousness standard. <br /> <br /> '''Suggestion to Combine'''<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> <br /> '''Objective Tests'''<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> <br /> '''The Inventive Step'''<br /> <br /> '''Relationship with Novelty'''<br /> Novelty is one of the standards that must be passed in order to obtain a patent. It deals with whether an invention is new or not. Sometimes there are ideas that seem new, but are really just a new concept of the idea. So in reality, the idea is more innovative. However, maybe that does deserve patentability. <br /> <br /> '''Nonobviousness vs. Invention'''<br /> Nonobviousness is a term that I have learned about in IP Law class. It deals when an individual is trying to patent something and the office will determine if it is patentable by three simple benchmarks it has to past, (Non-obviousness, novelty, and utility). Many of the cases that come up deal with non-obviousness in the sense that could an individual who is familiar with the art, come up with the same idea. If the answer is yes, then the item or concept is not an invention.<br /> <br /> '''Secondary Considerations'''<br /> Secondary Considerations are a last resort option that one could fall back on if they have been denied a patent due to an "obviousness" rejection under Section 103. Some secondary considerations are the following: the success of the invention commercially, the unresolved needs, failures by others, skepticism by experts, the admiration by others, and copying of the invention by other individuals. <br /> <br /> '''Ordinary Skill in the Art'''<br /> A person with ordinary skill in the art comes into play when a court is looking into a patent and they are determining whether or not an invention will pass the obviousness and non-obviousness standard. The court will look into this when there is an invention that is similar to something that exists or if it does a similar function or if it uses a bunch old existing arts and then combines them to do some task. <br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US<br /> <br /> 2/28/11<br /> <br /> Non-Obviousness<br /> <br /> To determine whether or not one is able to attain a patent, an individual must take their invention to the patent office and their invention must satisfy three requirements, non-obviousness, novelty, and utility. If the invention satisfies the three requirements, the inventor attains a patent for 17 years and reaps the benefits of having exclusive rights to their invention. However, attaining a patent can be challenging because there are lots of problems when trying to determine whether an invention satisfies the three requirements. One problem is satisfying the requirement of non-obviousness. This requirement is found in the United States Code: Title 35, Section 103 (35 USC 103), and is sometimes known as the most difficult patent issue to determine with facts. The following document will break down the requirement of non-obviousness by first, providing a guideline of non-obvious, second, outlining the policy considerations that provide a foundation for the requirement, third, a history of the subject through various cases, and finally, a proposed standard for non-obviousness.<br /> There are fundamentally three parts that determine whether an invention is non-obvious as well as secondary considerations. The first part is the content and scope of the prior art. This is talking about the relevant subject matter in the background of the art in which the idea or concept is being patented. The next part is during the time the inventions was made what are the differences between the subject at hand and the prior art. This is describing when the inventor is inventing his/her invention; the subject matter has to have obvious differences from the prior art that is specific to the same field. The last part is in the art, the level of “ordinary skill.” This means that the subject matter pertaining to a person that in the same art could do with basic skills. <br /> Furthermore, there are secondary considerations that help determine non-obviousness. First, there is the invention’s success as a product. Second, the unresolved needs that have been long felt. Third, the failure of others in a similar background. Fourth, praise by others. Fifth, the invention being copied by other competitors. Sixth, the identification of a problem. Seventh, teaching away by competitors in the art. And eighth, lack of support of the industry relating to the new invention.<br /> In 1421, Filippo Brunelleschi, a Florentine architect received a patent for a hoisting gear mounted on a barge that carried marble along the Arno River. Then in 1449, King Henry VI issued a 20 year patent to John of Utynam because he showed England how to create colored glass. When the United Sates became independent of Britain and wrote the United States Constitution, they included a section that alluded to patents. In Artile I, Section 8 of the United States Constitution, it states: “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;”<br /> Then in 1790, the first Congress adopted the Patent Act and on July 31, 1790 issued the first patent to Samuel Hopkins of Vermont for a technique to produce potash. From then on patents started to be issued. However, as more patents were issued problems arose with a threshold for inventiveness. This would ultimately transform into the idea of non-obviousness. Prior to 1850, when an invention came out, the only requirement was novelty and utility and non-obviousness were unheard of. The case that basically established non-obviousness was Hotchkiss v. Greenwood (1850). The case was described that the patent granted for a “new and useful improvement in making door and other knobs of clay used in pottery…” The knob of the door used to be made out of a metal or wood, and the new idea was to use clay instead because it was cheaper. They found that the patent was invalid because that despite the patent satisfying the requirement of a new idea and it was useful, it didn’t require any more ingenuity and skill to construct it. It was stated that, "....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." Therefore, after this case it was made clear that not only must a invention satisfy the novelty requirement, but it must also satisfy the non-obvious requirement. <br /> The next case that relates to no-obviousness is A. & P. Tea Co. v. Supermarket Corp., (1950). This case relates to a cashier’s counter that will be able to move groceries to a clerk and repeat the process. The main idea behind this invention is the counter was extended and sped up the process providing more convenience to the customers. The lower courts approved the patent because “the conception of a counter with an extension to receive a bottomless self-unloading tray with which to push the contents of the tray in front of the cashier was a decidedly novel feature and constitutes a new and useful combination.” The Supreme Court reversed the decision because even though it was new and useful, “The defect that we find in this judgment is that a standard of invention appears to have been used that is less exacting than that required where a combination is made up entirely of old components.” The case dealt with three significant issues. First, it dealt with the unresolved needs that have been long felt, which is one of secondary considerations for non-obviousness. Second, it brought up the fact that Thomas Jefferson wanted patents to be issued that promoted the advancement of science and furthered human knowledge and was new and useful. Thirdly, it brought up that all inventions are basically a mixture of old elements. <br /> The next case presented is Lyon v. Bausch & Lomb, (1955). This case presents a process to coat optical elements and improve the process to produce a “hard, durable and tenacious evaporated film on a surface of optical elements…” Lyon argues in the case that his two step process was unique and no other previous processes had this sequence. The court in the end stated the following: “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.” The case alluded back to the problem of whether a person in the same art and with ordinary skill could have done the same as Lyon, but clearly the court said it couldn’t be done.<br /> The next case shown is Graham v. John Deere (1966). The case relates to chisel plows. The problem with the chisel plow was that the shanks were attached rigidly to the frames. When dragged through certain terrains that contained rocks, a vibration was sent throughout the frame and titanic forces were transmitted and cause the shanks to break. Graham solved this problem by using a spring clamp instead of rigid attachment, this would allow the plows to be pushed and come back down when an object was encountered. The case touched on a lot of requirements to determine non-obviousness and a few of the secondary considerations as well. Since, John Deere had a problem with Graham’s idea, the content of the prior art and the differences between them was a big a factor as well as the ordinary skill of the relevant art. Now, despite that the invention satisfied a couple of the secondary considerations such as long felt needs that had not been resolved as well as no one else had found a solution to the constant breaking of shanks, the court still found the patent invalid. The court stated “The only other effective place available in the arrangement was to attach it below the hinge plate and run it through a [383 U.S. 1, 25] stirrup or bracket that would not disturb its flexing qualities. Certainly a person having ordinary skill in the prior art, given the fact that the flex in the shank could be utilized more effectively if allowed to run the entire length of the shank, would immediately see that the thing to do was what Graham did, i. e., invert the shank and the hinge plate.” This basically is the requirement of “level of ordinary skill” and the court said that what Graham did presented “no operative mechanical distinctions, much less nonobvious differences.”<br /> The next case is U.S. v. Adams (1966). The case describes the invention of a new, non-rechargeable battery. The battery’s specifications were as follows: provided constant voltage, did not need to use acids, light weight with respect to capacity, no harmful fumes generated, and could operate in extreme hot and cold conditions. However, the down side was that once it was activated it could not be shut off. The Government challenged Adam’s patent on the grounds of novelty as well as obviousness. They found that Adam’s battery was novel due to the fact this battery was water activated and no other battery was like that. Furthermore, Adam’s battery was non-obvious since “the operating characteristics of the Adams battery have been shown to have been unexpected and to have far surpassed then-existing wet batteries.” The battery did contain elements “well known in the prior art,” however; the manner in which Adams combined them required “a person reasonably skilled.” <br /> With all these cases determining whether some patents are non-obvious or not, I would like to propose a standard for the non-obvious requirement.<br /> To start off, the item would need to pass the following:<br /> It has to be different than related art. <br /> It has to be relevant in the prior art.<br /> It can’t be done by an ordinary person in the skill of the art. (An engineering analysis will be needed)<br /> It must solve a problem, even if the problem has been solved.<br /> It must better an idea, but needs to give rights to the previous idea.<br /> If it is a combination of existing elements, the manner in which assembled cannot involve a person of ordinary skill in art, but high skill.<br /> If it has results that are not expected.<br /> If many people are trying to copy it.<br /> This is the standard, and an "it" must be satisfied and "if" will be a secondary consideration.<br /> <br /> 3/23/11<br /> <br /> United States District Court, S. D. New York.<br /> DENNISON MANUFACTURING COMPANY, Plaintiff,<br /> v.<br /> BEN CLEMENTS AND SONS, INC., Defendant.<br /> <br /> No. 74 Civ. 979 (CES).<br /> March 14, 1979.<br /> <br /> The case is about the infringing of the device to connect clothing tags to the clothes themselves. The idea was to use plastic molded attachments to mark the clothing, to convey info to the customers, (brand name, price and size)The district court stated that the none of the claims of the patent were invalid because they didn't point out the distinct subject mater of the invention. Furthermore, that despite parts of the device existing in the prior art, it was not obvious to one of ordinary skill in the art. Then the secondary considerations of commercial success, long felt need, industry recognition and failure of others all helped.<br /> In the end, the claims were invalid and infringed.<br /> <br /> 4/2/11<br /> <br /> *Hughes Aircraft Co. v. U.S. 717 F.2d 1351<br /> <br /> NASA and Department of Defense, were trying to build a satellite that would orbit the earth. However, they were unable to do so they had problems with the attitude control. Williams, a man who was working for Hughes Co. was able to figure out the problem. He was able to have lab model on 4/2/60 and it was called "dynamic wheel." Williams presented it to NASA and then Hughes Co and NASA entered an agreement to build the satellite. Williams filed for a patent on 4/18/60 and that became known as "Williams patent." <br /> However, the govt started to build these spacecrafts that used the same systems from the satellite and did not give compensation to Williams. It went to court and the govt said that Williams patent was invalid because it infringed McLean's telescope. Williams rewrote his claims and stated “McLean's infrared telescope does not indicate the instantaneous spin angle position of his body with reference to a fixed external coordinate system, and it does not indicate the orientation of the axis with reference to a fixed external coordinate system." The court found Williams patent valid.<br /> Then, the court looked at the spacecraft and compared it to Williams satellite. They found the following similarites: "(1) each is spin-stabilized; (2) each contains a jet on the periphery, connected by a valve to a tank containing fluid for expulsion substantially parallel to the spin axis; (3) each employs sun sensors to sense ISA position; (4) each requires knowledge of orientation relative to a fixed external coordinate system; (5) each contains radio equipment for communicating with the ground; (6) each transmits spin rate and sun angle information to a ground crew; and (7) in each, jet firing is synchronized with ISA position to effect controlled precession and thus to achieve a desired orientation."<br /> Needless to say the court ruled that govt infringed Williams patent.<br /> <br /> Brief for Honeywell<br /> <br /> Summary: Honeywell was suing Hamilton because they infringed claims 8, 10, 11, 19, and 23 of patent 893 as well claim 4 of patent 194. The two patents involve the technology that helps control the amount of air through a compressor to prevent surges on aircrafts in auxiliary power units. The independent claims at hand are 8 and 19 of patent 893 and claim 4 of patent 194. <br /> Claim 8, describes how gas turbine engines will have compressed air that fluctuates in demand. Claim 19, is the control system to make sure that sufficient flow is going in and does not go below the minimum. <br /> <br /> Issues: Sundstand infringed are claims from our patents. Sundstand first, argued that we need to mark our product under 35 USC section 287, however, we feel that isn’t necessary because claim 4 under our 194 patent says it is not required to mark it. Next, Sundstand infringed our patents under the Doctrine of Equivalents. The Doctrine of Equivalents states: “a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is ‘equivalence’ between the elements of the accused product or process and the claimed elements of the patented invention.” Claim 19 states that: “A control system for assuring a substantially constant minimum flow rate through a duct receiving air discharged from a compressor or the like having adjustable inlet guide vanes.” And coincidently, it is stated that “the Sundstrand APS 3200 surge control system with its unique DELPQP flow-related parameter and its particular use of the inlet guide vane position as part of the high-flow logic that that parameter occasioned.”<br /> Next, our L1011, used a shock switch to differentiate between low and high flows, and Sundstand used IGV position. We believe, that one skilled in the art at the time of the 80’s would have been able to foresee this technology as stated: (1) “the alleged equivalent would have been unforeseeable at the time of the narrowing amendment” or (2) “the rationale underlying the narrowing amendment bore no more than a tangential relation to the equivalent in question.”<br /> <br /> Conclusion: We therefore believe that Court should decide in favor of Honeywell because it is shown that Sundstand has infringed our patents under the Doctrince of Equivalents.</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=4546 User:E W Hitchler 2011-04-04T01:21:26Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> <br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> <br /> '''Hotchkiss v. Greenwood (1850)'''<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> <br /> '''A&P Tea v. Supermarket Equipment (1950)'''<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> <br /> '''35 USC 103 (1952)'''<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> <br /> '''Graham v. John Deere (1966)'''<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> The Graham v. John Deere case includes two different cases. There was the case that involved John Deere and mechanism for plows, but there was also the case that involved the tops of spray bottles.<br /> The patent for the Graham case related to a spring clamp that permitted plow shanks to be pushed upward as the plow was dragged through rocky soil terrain. The spring then forces the shanks back into postion once the mass is gone. The court did an engineering analysis and said that the patent was not valid because it failed the obviousness test. <br /> The other case involved the shipping design of sprayer caps. One cap engaged with a washer or gasket which rested on the upper surface and the cap screwed directly on the container. The court decided that the patent was not valid because it failed the non-obviousness test.<br /> <br /> '''U.S. v. Adams (1966)'''<br /> 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.<br /> The Adams case relates to an electrical battery that is non-rechargeable. The concept of the invention was that it was light in weight, provided constant voltage, needed no acids and it was operable in extreme cold and extreme hot conditions. However, the only down side was that once the battery was activated it can't be turned off. When Adams went to go present his invention, the government stated that what he was stating was absurd and it couldn't be done. However, in WWII, the government ended up using it and they never notified Adams and when Adams did find out and asked for compensation, he was denied. In the end, it was found that Adams patent was valid and what the government did was wrong. The government tried to say that his invention lacked novelty, even though his battery was water activated and no other battery was like his.<br /> <br /> '''Anderson's Black Rock v. Pavement Salvage (1969)'''<br /> 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 known elements can become patentable.<br /> This case involves the problem when one puts together existing ideas or concepts together in another way and if it can become patentable. The case specifically presents the "Means for Treating Bituminous Pavement." The problem was that when they use to put on new material there would be formation of cracks and dirt and water would enter causing deterioration. The patent uses an old technology which was used in 1905 to heat up asphalt. After that, the patent suggest to use a spreader for putting down bituminous material and then finally a tamper and screed for shaping the new material. The respondent explained that the patent uses a combo of prior art, for a new and useful concept to get rid of a cold joint. At the end of the case, the final verdict was that it was not an invention by the obvious and non-obviousness standard. <br /> <br /> '''Suggestion to Combine'''<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> <br /> '''Objective Tests'''<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> <br /> '''The Inventive Step'''<br /> <br /> '''Relationship with Novelty'''<br /> Novelty is one of the standards that must be passed in order to obtain a patent. It deals with whether an invention is new or not. Sometimes there are ideas that seem new, but are really just a new concept of the idea. So in reality, the idea is more innovative. However, maybe that does deserve patentability. <br /> <br /> '''Nonobviousness vs. Invention'''<br /> Nonobviousness is a term that I have learned about in IP Law class. It deals when an individual is trying to patent something and the office will determine if it is patentable by three simple benchmarks it has to past, (Non-obviousness, novelty, and utility). Many of the cases that come up deal with non-obviousness in the sense that could an individual who is familiar with the art, come up with the same idea. If the answer is yes, then the item or concept is not an invention.<br /> <br /> '''Secondary Considerations'''<br /> Secondary Considerations are a last resort option that one could fall back on if they have been denied a patent due to an "obviousness" rejection under Section 103. Some secondary considerations are the following: the success of the invention commercially, the unresolved needs, failures by others, skepticism by experts, the admiration by others, and copying of the invention by other individuals. <br /> <br /> '''Ordinary Skill in the Art'''<br /> A person with ordinary skill in the art comes into play when a court is looking into a patent and they are determining whether or not an invention will pass the obviousness and non-obviousness standard. The court will look into this when there is an invention that is similar to something that exists or if it does a similar function or if it uses a bunch old existing arts and then combines them to do some task. <br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US<br /> <br /> 2/28/11<br /> <br /> Non-Obviousness<br /> <br /> To determine whether or not one is able to attain a patent, an individual must take their invention to the patent office and their invention must satisfy three requirements, non-obviousness, novelty, and utility. If the invention satisfies the three requirements, the inventor attains a patent for 17 years and reaps the benefits of having exclusive rights to their invention. However, attaining a patent can be challenging because there are lots of problems when trying to determine whether an invention satisfies the three requirements. One problem is satisfying the requirement of non-obviousness. This requirement is found in the United States Code: Title 35, Section 103 (35 USC 103), and is sometimes known as the most difficult patent issue to determine with facts. The following document will break down the requirement of non-obviousness by first, providing a guideline of non-obvious, second, outlining the policy considerations that provide a foundation for the requirement, third, a history of the subject through various cases, and finally, a proposed standard for non-obviousness.<br /> There are fundamentally three parts that determine whether an invention is non-obvious as well as secondary considerations. The first part is the content and scope of the prior art. This is talking about the relevant subject matter in the background of the art in which the idea or concept is being patented. The next part is during the time the inventions was made what are the differences between the subject at hand and the prior art. This is describing when the inventor is inventing his/her invention; the subject matter has to have obvious differences from the prior art that is specific to the same field. The last part is in the art, the level of “ordinary skill.” This means that the subject matter pertaining to a person that in the same art could do with basic skills. <br /> Furthermore, there are secondary considerations that help determine non-obviousness. First, there is the invention’s success as a product. Second, the unresolved needs that have been long felt. Third, the failure of others in a similar background. Fourth, praise by others. Fifth, the invention being copied by other competitors. Sixth, the identification of a problem. Seventh, teaching away by competitors in the art. And eighth, lack of support of the industry relating to the new invention.<br /> In 1421, Filippo Brunelleschi, a Florentine architect received a patent for a hoisting gear mounted on a barge that carried marble along the Arno River. Then in 1449, King Henry VI issued a 20 year patent to John of Utynam because he showed England how to create colored glass. When the United Sates became independent of Britain and wrote the United States Constitution, they included a section that alluded to patents. In Artile I, Section 8 of the United States Constitution, it states: “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;”<br /> Then in 1790, the first Congress adopted the Patent Act and on July 31, 1790 issued the first patent to Samuel Hopkins of Vermont for a technique to produce potash. From then on patents started to be issued. However, as more patents were issued problems arose with a threshold for inventiveness. This would ultimately transform into the idea of non-obviousness. Prior to 1850, when an invention came out, the only requirement was novelty and utility and non-obviousness were unheard of. The case that basically established non-obviousness was Hotchkiss v. Greenwood (1850). The case was described that the patent granted for a “new and useful improvement in making door and other knobs of clay used in pottery…” The knob of the door used to be made out of a metal or wood, and the new idea was to use clay instead because it was cheaper. They found that the patent was invalid because that despite the patent satisfying the requirement of a new idea and it was useful, it didn’t require any more ingenuity and skill to construct it. It was stated that, "....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." Therefore, after this case it was made clear that not only must a invention satisfy the novelty requirement, but it must also satisfy the non-obvious requirement. <br /> The next case that relates to no-obviousness is A. & P. Tea Co. v. Supermarket Corp., (1950). This case relates to a cashier’s counter that will be able to move groceries to a clerk and repeat the process. The main idea behind this invention is the counter was extended and sped up the process providing more convenience to the customers. The lower courts approved the patent because “the conception of a counter with an extension to receive a bottomless self-unloading tray with which to push the contents of the tray in front of the cashier was a decidedly novel feature and constitutes a new and useful combination.” The Supreme Court reversed the decision because even though it was new and useful, “The defect that we find in this judgment is that a standard of invention appears to have been used that is less exacting than that required where a combination is made up entirely of old components.” The case dealt with three significant issues. First, it dealt with the unresolved needs that have been long felt, which is one of secondary considerations for non-obviousness. Second, it brought up the fact that Thomas Jefferson wanted patents to be issued that promoted the advancement of science and furthered human knowledge and was new and useful. Thirdly, it brought up that all inventions are basically a mixture of old elements. <br /> The next case presented is Lyon v. Bausch & Lomb, (1955). This case presents a process to coat optical elements and improve the process to produce a “hard, durable and tenacious evaporated film on a surface of optical elements…” Lyon argues in the case that his two step process was unique and no other previous processes had this sequence. The court in the end stated the following: “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.” The case alluded back to the problem of whether a person in the same art and with ordinary skill could have done the same as Lyon, but clearly the court said it couldn’t be done.<br /> The next case shown is Graham v. John Deere (1966). The case relates to chisel plows. The problem with the chisel plow was that the shanks were attached rigidly to the frames. When dragged through certain terrains that contained rocks, a vibration was sent throughout the frame and titanic forces were transmitted and cause the shanks to break. Graham solved this problem by using a spring clamp instead of rigid attachment, this would allow the plows to be pushed and come back down when an object was encountered. The case touched on a lot of requirements to determine non-obviousness and a few of the secondary considerations as well. Since, John Deere had a problem with Graham’s idea, the content of the prior art and the differences between them was a big a factor as well as the ordinary skill of the relevant art. Now, despite that the invention satisfied a couple of the secondary considerations such as long felt needs that had not been resolved as well as no one else had found a solution to the constant breaking of shanks, the court still found the patent invalid. The court stated “The only other effective place available in the arrangement was to attach it below the hinge plate and run it through a [383 U.S. 1, 25] stirrup or bracket that would not disturb its flexing qualities. Certainly a person having ordinary skill in the prior art, given the fact that the flex in the shank could be utilized more effectively if allowed to run the entire length of the shank, would immediately see that the thing to do was what Graham did, i. e., invert the shank and the hinge plate.” This basically is the requirement of “level of ordinary skill” and the court said that what Graham did presented “no operative mechanical distinctions, much less nonobvious differences.”<br /> The next case is U.S. v. Adams (1966). The case describes the invention of a new, non-rechargeable battery. The battery’s specifications were as follows: provided constant voltage, did not need to use acids, light weight with respect to capacity, no harmful fumes generated, and could operate in extreme hot and cold conditions. However, the down side was that once it was activated it could not be shut off. The Government challenged Adam’s patent on the grounds of novelty as well as obviousness. They found that Adam’s battery was novel due to the fact this battery was water activated and no other battery was like that. Furthermore, Adam’s battery was non-obvious since “the operating characteristics of the Adams battery have been shown to have been unexpected and to have far surpassed then-existing wet batteries.” The battery did contain elements “well known in the prior art,” however; the manner in which Adams combined them required “a person reasonably skilled.” <br /> With all these cases determining whether some patents are non-obvious or not, I would like to propose a standard for the non-obvious requirement.<br /> To start off, the item would need to pass the following:<br /> It has to be different than related art. <br /> It has to be relevant in the prior art.<br /> It can’t be done by an ordinary person in the skill of the art. (An engineering analysis will be needed)<br /> It must solve a problem, even if the problem has been solved.<br /> It must better an idea, but needs to give rights to the previous idea.<br /> If it is a combination of existing elements, the manner in which assembled cannot involve a person of ordinary skill in art, but high skill.<br /> If it has results that are not expected.<br /> If many people are trying to copy it.<br /> This is the standard, and an "it" must be satisfied and "if" will be a secondary consideration.<br /> <br /> 3/23/11<br /> <br /> United States District Court, S. D. New York.<br /> DENNISON MANUFACTURING COMPANY, Plaintiff,<br /> v.<br /> BEN CLEMENTS AND SONS, INC., Defendant.<br /> <br /> No. 74 Civ. 979 (CES).<br /> March 14, 1979.<br /> <br /> The case is about the infringing of the device to connect clothing tags to the clothes themselves. The idea was to use plastic molded attachments to mark the clothing, to convey info to the customers, (brand name, price and size)The district court stated that the none of the claims of the patent were invalid because they didn't point out the distinct subject mater of the invention. Furthermore, that despite parts of the device existing in the prior art, it was not obvious to one of ordinary skill in the art. Then the secondary considerations of commercial success, long felt need, industry recognition and failure of others all helped.<br /> In the end, the claims were invalid and infringed.<br /> <br /> 4/2/11<br /> <br /> *Hughes Aircraft Co. v. U.S. 717 F.2d 1351<br /> <br /> NASA and Department of Defense, were trying to build a satellite that would orbit the earth. However, they were unable to do so they had problems with the attitude control. Williams, a man who was working for Hughes Co. was able to figure out the problem. He was able to have lab model on 4/2/60 and it was called "dynamic wheel." Williams presented it to NASA and then Hughes Co and NASA entered an agreement to build the satellite. Williams filed for a patent on 4/18/60 and that became known as "Williams patent." <br /> However, the govt started to build these spacecrafts that used the same systems from the satellite and did not give compensation to Williams. It went to court and the govt said that Williams patent was invalid because it infringed McLean's telescope. Williams rewrote his claims and stated “McLean's infrared telescope does not indicate the instantaneous spin angle position of his body with reference to a fixed external coordinate system, and it does not indicate the orientation of the axis with reference to a fixed external coordinate system." The court found Williams patent valid.<br /> Then, the court looked at the spacecraft and compared it to Williams satellite. They found the following similarites: "(1) each is spin-stabilized; (2) each contains a jet on the periphery, connected by a valve to a tank containing fluid for expulsion substantially parallel to the spin axis; (3) each employs sun sensors to sense ISA position; (4) each requires knowledge of orientation relative to a fixed external coordinate system; (5) each contains radio equipment for communicating with the ground; (6) each transmits spin rate and sun angle information to a ground crew; and (7) in each, jet firing is synchronized with ISA position to effect controlled precession and thus to achieve a desired orientation."<br /> Needless to say the court ruled that govt infringed Williams patent.</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=Doctrine_of_Equivalents_Case_List&diff=4545 Doctrine of Equivalents Case List 2011-04-04T01:18:56Z

<p>E W Hitchler: </p> <hr /> <div>Add your case to the list with a one-paragraph (approximately 250 words) summary of the facts at issues, i.e., "an umbrella is or is not equivalent to a parasol because..."<br /> <br /> Please put the cases in chronological order. If two are from the same year, then put them in alphabetical order. Also put your name, your login name or NDID number with your case. Use the following for a template.<br /> <br /> * Goodwine v. Batill, 123 US 4567 (1066)<br /> This case concerned a patent for an iPad and the patentee sued the maker of an iPod for infringement. The important part of the claim was "a device for playing music and other media comprising a touch screen..." The court held that iPod infringed the iPad patent because the ... was equivalent to the ... because ...<br /> <br /> Bill Goodwine<br /> <br /> *AMEC Liquidating Trust v. IVAC Corporation, 885 F.2d 1574 (1989)<br /> <br /> AMEC had a patent for a thermometer with a plastic cover held on by a hooking type mechanism. IVAC created a thermometer with a cover held on by a ring that created a friction lock. The CAFC held the IVAC invention was non-infringing on the AMEC patent because under the doctrine of equivalents, it did not perform the same function in the same way. The AMEC thermometer cover used an inscription fit, which created deep scratches in the cover. The IVAC thermometer used a friction fit, which only created superficial scratches in the cover. The CAFC found that the superficial scratches did not constitute an inscription fit. Also, the CAFC decided that AMEC did not present any evidence proving that the ring in the IVAC patent was equivalent to the “hook” in the AMEC patent. Because of this, the patent was non-infringing under the doctrine of equivalents.<br /> <br /> 901444263<br /> <br /> *Johnston v. IVAC Corp., 885 F.2d 1574 (1989)<br /> <br /> The inventor, Turner, invented a thermometer probe cover that stays on (this was owned by AMEC). It kept the cover on via a sharp metal hook to tear into the cover’s plastic. IVAC developed a thermometer that served a similar purpose of keeping the probe cover on, except that it did so with a ring on the probe (to hold the cover via friction). IVAC intentionally left the probe free of any sharp edge to ease the removal of the probe cover when needed. District Court of Southern California ruled in summary judgment that IVAC’s thermometer probe covers do not infringe AMEC’s. On appeal from AMEC, the Court of Appeals affirmed the judgment. A ring that does not tear the plastic cover is not equivalent to the hook that does. [http://campus.westlaw.com.proxy.library.nd.edu/result/default.wl?mt=CampusLaw&db=ALLCASES&rlt=CLID_QRYRLT4121840350313&origin=Search&sp=003654480-2000&method=TNC&cfid=1&rp=%2fwelcome%2fCampusLaw%2fdefault.wl&eq=welcome%2fCampusLaw&rltdb=CLID_DB1095239350313&srch=TRUE&query=TI(JOHNSTON+%26+IVAC)&vr=2.0&fmqv=s&action=Search&fn=_top&service=Search&sv=Split&rs=WLW11.01]<br /> <br /> 901471466<br /> <br /> * Lemelson v. General Mills, Inc., 968 F.2d 1202 (1992) <br /> <br /> Lemelson sued Mattel, alleging that Mattel's "Hot Wheels" toy car track infringed on his patented toy track. The U.S. District Court for the Northern District of Illinois found in favor of the plaintiff. Mattel appealed to the CAFC. The Court held that the "Hot Wheels" track did not contain all the limitations of the patent; it was equivalent to the prior art. That is, Lemelson's patent could not be both valid in light of the prior art and infringed upon by Mattel. Furthermore, upon his first application, claim 3 of Lemelson's patent had five clauses. The PTO examiner found the patent to be indistinguishable from the prior art. Lemelson added clauses [f] and [g] and received a patent. The important parts of the claim were, "[f] said guide means include a pair of spaced apart runner portions for defining the pathway of a vehicle moving over said track, [g] said spaced apart runner portions include upwardly extending rails for guiding the wheels of a vehicle." The Court held that "Hot wheels" did not contain any elements equivalent to the clauses [f] and [g]. The Court also noted that the public is entitled to the PTO record to determine the scope and meaning of claims. <br /> <br /> 901330223<br /> <br /> *Valmont Industries Inc. v. Reinke Manufacturing Company Inc., 983 F.2d 1039 (1993)<br /> <br /> 901316153<br /> <br /> This case concerns an adaption for center-pivot (i.e. rotating) irrigation systems. The adaption (an apparatus that attaches to the main frame of the sprinkler) allows the corners of a field, normally missed by the standard rotating irrigation system, to be watered. The infringement issue relates to the means by which the position of the sprinkler is detected, relative to the field. The patent uses a method of pivot angle encoders, while the "infringing" patent uses buried electromagnetic cables to guide the sprinkler around the field.<br /> <br /> The CAFC ruled that the second device was not infringing, reversing the decision of the district court. The district court argued that the means of controlling the system were equivalent. The CAFC's argument was that while the two irrigation systems performed substantially the same overall function to obtain substantially the same overall result as the claimed invention, the way those results were achieved was substantially different. "Comparison of these two control means compels the conclusion that the claimed control means and Reinke's control means are not structurally equivalent.[...][E]ven though both the control means in the specification and the control means on Reinke's device use electric signals, the structures generating those signals are strikingly different." <br /> <br /> Because the doctrine of equivalence requires that the two devices perform substantially the same function in substantially the same way to achieve substantially the same results, the two control systems were not equivalent under the doctrine of equivalence because they did not meet the "way" requirement of the doctrine of equivalence.<br /> <br /> *William Bradshaw and Robert Shepherd v. Igloo Products Corp. 1997 WL 543109 (US District Court, N.D.Ill.)<br /> <br /> William Bradshaw sued Igloo Products for infringement of a wheeled cooler. Bradshaw’s patent was for a cooler with a pulling handle and two lifting handles, one of which was connected on the same axle as the pulling handle. The Igloo products in question were the Rolling Kool Locker which had a rotatable lifting hand that can also be used to pull the cooler and the Cool Roller which had separate lifting and pulling handles coupled to separate axles. The court decided that the prior art for the Cool Roller was a different patent, the Mason patent. This patent was for a wheeled cooler with separate lifting and pulling handles. The Mason patent was granted before Bradshaw’s patent. The court ruled that the Cool Roller fell under the Mason patent. Therefore, if Bradshaw’s patent were to be expanded to include the Cool Roller’s handles, it would be an invalid patent as a result of the prior art, the Mason patent. This leads to a method of deciding infringement. If the product in question mimics prior art, then it cannot infringe the patent otherwise that patent would be invalid. In deciding infringement for the Rolling Kool Locker, the court decided that it was up to a jury to decide whether the Kool Lockers handles were equivalent to Bradshaw’s patent, since there was no other glaring evidence. <br /> <br /> Eric Paul<br /> <br /> *Hale Propeller, L.L.C. v Ryan Marine Products Pty., LTD., et al, 151 F. Supp .2d 183 (2001) Connecticut District Court<br /> Ryan owned patent 4411073, issued on 25 October 1983, which concerned devices to measure the pitch of propeller blades. Ryan originally filed the claim on 13 July 1981 it was rejected and then ammended on 4 October 1982. Hale's device called the "Hale Propeller MRI" was developed in 1997. In question are claims 1(b),(c),(f), and 6. A third party, Michigan Wheel Corporation, a distributor of Hale's invention filed for patent invalidity. The important differences between Hale's and Ryan's device are that Hale's does not use gears or worm-drives to rotate the blade and the device does not give direct readouts of the measurements using electric circuits. The issue with claim 1(b) was if a roller was a necessary part of the structure because it prevents skipping of the probe making the measurements more accurate. The court used means-plus-function to rule that the roller was important and Hale did not infringe. The issue with claim 1(c) deals with whether a worm or gear drive is necessary to rotate the blade. Ryan's patent discloses a hand-cranked device, like Hales, but includes a worm-drive. Part of Ryan's ammendment to his claim was to include worm gear to the hand-cranking device and therefore the court used prosecution history estoppel to make their decision because Ryan forfeited that claim (hand-cranked device without worm-drive) in order to get the patent and therefore cannot use doctrine of equivalents to get the claim back. The issue of claim 1(f) was whether the computer in the claim was a special computer needed for the readouts. The court ruled that the claim was not that narrow, but then the court ruled that claim 6 dealt with a computer that receives measurement data from the optical encoder and therefore Hale did not infringe. The patent was also ruled valid using the roller and worm drive to prove that it was non-obvious §103, definitively disclosed §112, and not anticipated by prior art §102(b).<br /> <br /> Gillian Allsup<br /> <br /> <br /> 901281608<br /> <br /> <br /> *Siemens Medical Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc. Nos. 2010-1145, 2010-117. (2001) United States Court of Appeals, Federal Circuit<br /> <br /> <br /> This case began as an infringement lawsuit by Siemens Medical Solutions USA, inc. against Saint-Gobain Ceramics and Plastics, Inc. for the alleged infringement of a patent held by Siemens for a scintillator, a part of an x-ray machine that detects radiation. Saint-Gobain owned a patent for a similar device and the circuit court found that this patent infringed on the patent held by Siemens, which was filed earlier. Though the doctrine of equivalents was used to rule infringement, Saint-Gobain was found to have accidentally, rather than willfully infringed and Siemens was awarded 52.3 million dollars. <br /> <br /> Siemens filed for patent number 4,958,080 on August 4, 1989. This patent was for a scintillator containing cerium-doped- lutetium oxyorthosilicate. This is a component of a radiation detector that absorbs gamma-ray photons from an x-ray machine and converts them to visible light so the results can be interpreted. Saint-Gobain also produces scintillators, filing patent number 6,6424,420 in 2000 for a cerium-doped lutetium-yttrium orthosilicate. The chemical composition differs from that of the Siemens' patent as %10 of the lutetium is substituted for yttrium. These scintillators were sold by Saint-Gobain to Philips Medical Systems, a competitor of Siemens. The circuit court found that the composition of Saint-Gobain's scintillator preformed largely the same function in the same manner as Siemens' patent, and therefore was infringement under the doctrine of equivalence. <br /> <br /> Saint-Gobain filed a motion for a new trail, on the basis that the jury was not told that infringement by the doctrine of equivalence must be proved by clear evidence and argued that damages should be remitted. The Federal Appeals Court did not grant Saint-Gobain a new trial, but did reduces the damages to 44 million. <br /> <br /> <br /> *Sunbeam Products, Inc. v. Homedics, Inc., Slip Copy, 2010 WL 5230892 (2010)<br /> <br /> This case involved a patent for a force-transmitting bearing used with a platform scale. Sunbeam held a patent which specified bearings which were attached to the platform via loose tabs which allowed the bearings to move horizontally. The patent claims required the base of the bearing to be oriented parallel to the platform and remain parallel to the platform at all times. The structure of the accused device was such that the bearings were connection to the platforms using dimples on the lower surface of the platform which the bearings fit into. Sunbeam had criticized prior art which used a similar dimple connection during prosecution beacuse of the potential for unwanted force moments applied by the bearing. The CAFC upheld the District Court's finding of no infringement based on the doctrine of equivalents because bearings which rocked and pivoted, as the accused device did, did not fall within the reach of the patent claims because they did not remain parallel to the platform at all times.<br /> <br /> 901422128<br /> <br /> *Kustom Signals, Inc. v. Applied Concepts, Inc., 264 F.3d 1326 (2001)<br /> Kustom Signals held a patent for a multimode traffic radar system which will show either the fastest speed or the strongest signal. Three of the claims used the word "or" in their wording. Kustom claimed that the "or" was a logical operator meaning one, the other, or both. Applied Concepts had designed a radar system which returned both the fastest speed and the strongest signal. The Court held that the word "or" was to hold its traditional, customary meaning as being exclusive, not inclusive, of the two statements.<br /> <br /> 901 41 7852<br /> <br /> *Sage Products, Inc. v. Devon Industries, Inc., 126 F. 3d 1420 (1997)<br /> <br /> Sage Products sued Devon Industries for infringement of several patents relating to containers for disposing of hazardous medical waste (needles etc.). Devon counter-sued for infringement of one of its similar patents. The district court held (on summary judgment) that there was no infringement by either party literally or equivalently. The appellate court affirmed. <br /> <br /> <br /> Devon’s first alleged infringement was of Sage’s container claiming an elongated slot "at the top" of the apparatus for which to deposit waste, and a "barrier over the slot" to prevent contamination. Devon's patent involved a type of elongated slot that was embedded within the container and a hinged element at the opening. The court ruled no literal infringement because the Devon patent did not include the "at the top" and "over" features of the Sage claim. Even though the devices perform the same function the court ruled no equivalent infringement because the hinged element did not "substantially constrict access" to the container, and the slot was not "substantially at the top" of the container. The court was adamant that equivalent function could not negate the “at the top” and “over” limitations of the patent, stating that such power would reduce patent claims to "functional abstracts" devoid of meaningful structure limitations for the public to reference. A second infringement involved in this case resulted in the court ruling that if patent claims specify a function and recite its importance the patentee cannot later accuse an invention devoid of the specified function of infringement.<br /> <br /> 901419437<br /> <br /> *Siemens Medical Solutions USA, INC. v. Saint-Gobain Ceramics & Plastics., F.3d, 2011 WL 651790 (2011)<br /> <br /> Siemens developed, manufactured, and sold PET scanners which made use of scintillator crystals consisting of cerium-doped lutetium oxyorthosilicate (LSO). Saint-Gobain manufactures and sells scintillator crystals for use in PET scanners which consisted of cerium-doped lutetium-yttrium orthosilicate (LYSO). This is chemically different from LSO in that some of the lutetium is substituted for by yttrium. In Saint-Gobain's crystals, 10% of the lutetium atoms are substituted for by yttrium atoms (crystals are 10% Y LYSO). In April of 2007, Siemens sued Saint-Gobain for infringement of claims 1 and 2 of Siemens '080 patent for LSO scintillator crystals and photodetectors. Saint-Gobain aregued that its LYSO crystals are not equivalent to those claimed in the '080 patent because their crystals are separately claimed by their '420 patent. A jury trial found Saint-Gobain infringing upon the claims held by Siemens. Saint-Gobains appeals, and claims that the district court erred in jury instructions, claiming that in cases where an alleged equivalent is separately patented, a higher burden of evidence is required. Their reasoning was that the jury's finding of infringement effectively invalidated their '420 patent for LYSO crystals as the ruling of equivalence implied a conclusion of obviousness. The Court of Appeals disagrees, stating that it is well established that separate patentability does not avoid equivalency as a matter of law. The Court of Appeals also disagrees that the jury's finding of infringement invalidates the '420 patent; it only finds the level of LYSO used in practice (10%) is equivalent to Siemen's LSO crystals. Other compositions of LYSO could well be non-equivalent. Using the function-way-result test which asks whether an element of the an accused product performs substantially the same function in substantially the same way, the Court of Appeals affirms the juries finding of infringement. <br /> <br /> Erich Wolz<br /> <br /> *Sunbeam Products Inc. v. Homedics Products Inc. , US Court of Appeals, District Court of Wisconsin (2010)<br /> This case involved a clear example of non-equivalence relating to the doctrine of equivalence. The patent holder Sunbeam Products brought action against competitor Homedics, alleging infringement of its patent for force-transmitting bearings for a platform scale. This case was decided under the district court of Wisconsin. Sunbeam Products had created platform bearings which translated purely horizontally along a platform which transferred all platform loads into purely vertical loads supported by the bearings. A previous patent, ‘326 patent, encompassed bearings which rocked and pivoted. HoMedics's accused scales all include bearings similar to the bearing disclosed in the ′326 patent. Each of the HoMedics bearings is machined with a nose-like protrusion that fits into a corresponding dimple on the underside of the platform. The trial court noted that the accused bearings all rock and pivot within their corresponding dimples in the underside of the platform. Sunbeam did not dispute that the HoMedics bearings rock and pivot in that manner. Sunbeam's argument was that in addition to rocking and pivoting, the HoMedics bearings were capable of some horizontal movement and therefore infringe the ′420 patent.<br /> In light of its claim construction and the undisputed evidence regarding the operation of the bearings in the accused HoMedics products, the district court granted summary judgment of noninfringement. The court determined that no reasonable juror could find that bearings that rock and pivot remain parallel to the underside of the platform; accordingly, it held that the pivoting bearings in all of the accused products do not literally infringe the ′420 patent.<br /> <br /> The most important distinction that was made in this case was the following statement. “The doctrine of equivalents is not a license to rewrite the claims to encompass what a patentee believes to be an equivalent structure. That is especially true in a case such as this one, where the accused product is not later-developed technology that is insubstantially different from the claimed invention, but instead embodies disavowed prior art. Thus, the district court correctly held that the accused bearings do not infringe the ′420 patent under the doctrine of equivalents.”<br /> <br /> Christine Roetzel - 901425022<br /> <br /> *Hughes Aircraft Co. v. U.S. 717 F.2d 1351<br /> <br /> NASA and Department of Defense, were trying to build a satellite that would orbit the earth. However, they were unable to do so they had problems with the attitude control. Williams, a man who was working for Hughes Co. was able to figure out the problem. He was able to have lab model on 4/2/60 and it was called "dynamic wheel." Williams presented it to NASA and then Hughes Co and NASA entered an agreement to build the satellite. Williams filed for a patent on 4/18/60 and that became known as "Williams patent." <br /> However, the govt started to build these spacecrafts that used the same systems from the satellite and did not give compensation to Williams. It went to court and the govt said that Williams patent was invalid because it infringed McLean's telescope. Williams rewrote his claims and stated “McLean's infrared telescope does not indicate the instantaneous spin angle position of his body with reference to a fixed external coordinate system, and it does not indicate the orientation of the axis with reference to a fixed external coordinate system." The court found Williams patent valid.<br /> Then, the court looked at the spacecraft and compared it to Williams satellite. They found the following similarites: "(1) each is spin-stabilized; (2) each contains a jet on the periphery, connected by a valve to a tank containing fluid for expulsion substantially parallel to the spin axis; (3) each employs sun sensors to sense ISA position; (4) each requires knowledge of orientation relative to a fixed external coordinate system; (5) each contains radio equipment for communicating with the ground; (6) each transmits spin rate and sun angle information to a ground crew; and (7) in each, jet firing is synchronized with ISA position to effect controlled precession and thus to achieve a desired orientation."<br /> Needless to say the court ruled that govt infringed Williams patent.<br /> <br /> 901439143</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=4236 User:E W Hitchler 2011-03-22T23:07:06Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> <br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> <br /> '''Hotchkiss v. Greenwood (1850)'''<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> <br /> '''A&P Tea v. Supermarket Equipment (1950)'''<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> <br /> '''35 USC 103 (1952)'''<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> <br /> '''Graham v. John Deere (1966)'''<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> The Graham v. John Deere case includes two different cases. There was the case that involved John Deere and mechanism for plows, but there was also the case that involved the tops of spray bottles.<br /> The patent for the Graham case related to a spring clamp that permitted plow shanks to be pushed upward as the plow was dragged through rocky soil terrain. The spring then forces the shanks back into postion once the mass is gone. The court did an engineering analysis and said that the patent was not valid because it failed the obviousness test. <br /> The other case involved the shipping design of sprayer caps. One cap engaged with a washer or gasket which rested on the upper surface and the cap screwed directly on the container. The court decided that the patent was not valid because it failed the non-obviousness test.<br /> <br /> '''U.S. v. Adams (1966)'''<br /> 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.<br /> The Adams case relates to an electrical battery that is non-rechargeable. The concept of the invention was that it was light in weight, provided constant voltage, needed no acids and it was operable in extreme cold and extreme hot conditions. However, the only down side was that once the battery was activated it can't be turned off. When Adams went to go present his invention, the government stated that what he was stating was absurd and it couldn't be done. However, in WWII, the government ended up using it and they never notified Adams and when Adams did find out and asked for compensation, he was denied. In the end, it was found that Adams patent was valid and what the government did was wrong. The government tried to say that his invention lacked novelty, even though his battery was water activated and no other battery was like his.<br /> <br /> '''Anderson's Black Rock v. Pavement Salvage (1969)'''<br /> 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 known elements can become patentable.<br /> This case involves the problem when one puts together existing ideas or concepts together in another way and if it can become patentable. The case specifically presents the "Means for Treating Bituminous Pavement." The problem was that when they use to put on new material there would be formation of cracks and dirt and water would enter causing deterioration. The patent uses an old technology which was used in 1905 to heat up asphalt. After that, the patent suggest to use a spreader for putting down bituminous material and then finally a tamper and screed for shaping the new material. The respondent explained that the patent uses a combo of prior art, for a new and useful concept to get rid of a cold joint. At the end of the case, the final verdict was that it was not an invention by the obvious and non-obviousness standard. <br /> <br /> '''Suggestion to Combine'''<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> <br /> '''Objective Tests'''<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> <br /> '''The Inventive Step'''<br /> <br /> '''Relationship with Novelty'''<br /> Novelty is one of the standards that must be passed in order to obtain a patent. It deals with whether an invention is new or not. Sometimes there are ideas that seem new, but are really just a new concept of the idea. So in reality, the idea is more innovative. However, maybe that does deserve patentability. <br /> <br /> '''Nonobviousness vs. Invention'''<br /> Nonobviousness is a term that I have learned about in IP Law class. It deals when an individual is trying to patent something and the office will determine if it is patentable by three simple benchmarks it has to past, (Non-obviousness, novelty, and utility). Many of the cases that come up deal with non-obviousness in the sense that could an individual who is familiar with the art, come up with the same idea. If the answer is yes, then the item or concept is not an invention.<br /> <br /> '''Secondary Considerations'''<br /> Secondary Considerations are a last resort option that one could fall back on if they have been denied a patent due to an "obviousness" rejection under Section 103. Some secondary considerations are the following: the success of the invention commercially, the unresolved needs, failures by others, skepticism by experts, the admiration by others, and copying of the invention by other individuals. <br /> <br /> '''Ordinary Skill in the Art'''<br /> A person with ordinary skill in the art comes into play when a court is looking into a patent and they are determining whether or not an invention will pass the obviousness and non-obviousness standard. The court will look into this when there is an invention that is similar to something that exists or if it does a similar function or if it uses a bunch old existing arts and then combines them to do some task. <br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US<br /> <br /> 2/28/11<br /> <br /> Non-Obviousness<br /> <br /> To determine whether or not one is able to attain a patent, an individual must take their invention to the patent office and their invention must satisfy three requirements, non-obviousness, novelty, and utility. If the invention satisfies the three requirements, the inventor attains a patent for 17 years and reaps the benefits of having exclusive rights to their invention. However, attaining a patent can be challenging because there are lots of problems when trying to determine whether an invention satisfies the three requirements. One problem is satisfying the requirement of non-obviousness. This requirement is found in the United States Code: Title 35, Section 103 (35 USC 103), and is sometimes known as the most difficult patent issue to determine with facts. The following document will break down the requirement of non-obviousness by first, providing a guideline of non-obvious, second, outlining the policy considerations that provide a foundation for the requirement, third, a history of the subject through various cases, and finally, a proposed standard for non-obviousness.<br /> There are fundamentally three parts that determine whether an invention is non-obvious as well as secondary considerations. The first part is the content and scope of the prior art. This is talking about the relevant subject matter in the background of the art in which the idea or concept is being patented. The next part is during the time the inventions was made what are the differences between the subject at hand and the prior art. This is describing when the inventor is inventing his/her invention; the subject matter has to have obvious differences from the prior art that is specific to the same field. The last part is in the art, the level of “ordinary skill.” This means that the subject matter pertaining to a person that in the same art could do with basic skills. <br /> Furthermore, there are secondary considerations that help determine non-obviousness. First, there is the invention’s success as a product. Second, the unresolved needs that have been long felt. Third, the failure of others in a similar background. Fourth, praise by others. Fifth, the invention being copied by other competitors. Sixth, the identification of a problem. Seventh, teaching away by competitors in the art. And eighth, lack of support of the industry relating to the new invention.<br /> In 1421, Filippo Brunelleschi, a Florentine architect received a patent for a hoisting gear mounted on a barge that carried marble along the Arno River. Then in 1449, King Henry VI issued a 20 year patent to John of Utynam because he showed England how to create colored glass. When the United Sates became independent of Britain and wrote the United States Constitution, they included a section that alluded to patents. In Artile I, Section 8 of the United States Constitution, it states: “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;”<br /> Then in 1790, the first Congress adopted the Patent Act and on July 31, 1790 issued the first patent to Samuel Hopkins of Vermont for a technique to produce potash. From then on patents started to be issued. However, as more patents were issued problems arose with a threshold for inventiveness. This would ultimately transform into the idea of non-obviousness. Prior to 1850, when an invention came out, the only requirement was novelty and utility and non-obviousness were unheard of. The case that basically established non-obviousness was Hotchkiss v. Greenwood (1850). The case was described that the patent granted for a “new and useful improvement in making door and other knobs of clay used in pottery…” The knob of the door used to be made out of a metal or wood, and the new idea was to use clay instead because it was cheaper. They found that the patent was invalid because that despite the patent satisfying the requirement of a new idea and it was useful, it didn’t require any more ingenuity and skill to construct it. It was stated that, "....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." Therefore, after this case it was made clear that not only must a invention satisfy the novelty requirement, but it must also satisfy the non-obvious requirement. <br /> The next case that relates to no-obviousness is A. & P. Tea Co. v. Supermarket Corp., (1950). This case relates to a cashier’s counter that will be able to move groceries to a clerk and repeat the process. The main idea behind this invention is the counter was extended and sped up the process providing more convenience to the customers. The lower courts approved the patent because “the conception of a counter with an extension to receive a bottomless self-unloading tray with which to push the contents of the tray in front of the cashier was a decidedly novel feature and constitutes a new and useful combination.” The Supreme Court reversed the decision because even though it was new and useful, “The defect that we find in this judgment is that a standard of invention appears to have been used that is less exacting than that required where a combination is made up entirely of old components.” The case dealt with three significant issues. First, it dealt with the unresolved needs that have been long felt, which is one of secondary considerations for non-obviousness. Second, it brought up the fact that Thomas Jefferson wanted patents to be issued that promoted the advancement of science and furthered human knowledge and was new and useful. Thirdly, it brought up that all inventions are basically a mixture of old elements. <br /> The next case presented is Lyon v. Bausch & Lomb, (1955). This case presents a process to coat optical elements and improve the process to produce a “hard, durable and tenacious evaporated film on a surface of optical elements…” Lyon argues in the case that his two step process was unique and no other previous processes had this sequence. The court in the end stated the following: “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.” The case alluded back to the problem of whether a person in the same art and with ordinary skill could have done the same as Lyon, but clearly the court said it couldn’t be done.<br /> The next case shown is Graham v. John Deere (1966). The case relates to chisel plows. The problem with the chisel plow was that the shanks were attached rigidly to the frames. When dragged through certain terrains that contained rocks, a vibration was sent throughout the frame and titanic forces were transmitted and cause the shanks to break. Graham solved this problem by using a spring clamp instead of rigid attachment, this would allow the plows to be pushed and come back down when an object was encountered. The case touched on a lot of requirements to determine non-obviousness and a few of the secondary considerations as well. Since, John Deere had a problem with Graham’s idea, the content of the prior art and the differences between them was a big a factor as well as the ordinary skill of the relevant art. Now, despite that the invention satisfied a couple of the secondary considerations such as long felt needs that had not been resolved as well as no one else had found a solution to the constant breaking of shanks, the court still found the patent invalid. The court stated “The only other effective place available in the arrangement was to attach it below the hinge plate and run it through a [383 U.S. 1, 25] stirrup or bracket that would not disturb its flexing qualities. Certainly a person having ordinary skill in the prior art, given the fact that the flex in the shank could be utilized more effectively if allowed to run the entire length of the shank, would immediately see that the thing to do was what Graham did, i. e., invert the shank and the hinge plate.” This basically is the requirement of “level of ordinary skill” and the court said that what Graham did presented “no operative mechanical distinctions, much less nonobvious differences.”<br /> The next case is U.S. v. Adams (1966). The case describes the invention of a new, non-rechargeable battery. The battery’s specifications were as follows: provided constant voltage, did not need to use acids, light weight with respect to capacity, no harmful fumes generated, and could operate in extreme hot and cold conditions. However, the down side was that once it was activated it could not be shut off. The Government challenged Adam’s patent on the grounds of novelty as well as obviousness. They found that Adam’s battery was novel due to the fact this battery was water activated and no other battery was like that. Furthermore, Adam’s battery was non-obvious since “the operating characteristics of the Adams battery have been shown to have been unexpected and to have far surpassed then-existing wet batteries.” The battery did contain elements “well known in the prior art,” however; the manner in which Adams combined them required “a person reasonably skilled.” <br /> With all these cases determining whether some patents are non-obvious or not, I would like to propose a standard for the non-obvious requirement.<br /> To start off, the item would need to pass the following:<br /> It has to be different than related art. <br /> It has to be relevant in the prior art.<br /> It can’t be done by an ordinary person in the skill of the art. (An engineering analysis will be needed)<br /> It must solve a problem, even if the problem has been solved.<br /> It must better an idea, but needs to give rights to the previous idea.<br /> If it is a combination of existing elements, the manner in which assembled cannot involve a person of ordinary skill in art, but high skill.<br /> If it has results that are not expected.<br /> If many people are trying to copy it.<br /> This is the standard, and an "it" must be satisfied and "if" will be a secondary consideration.<br /> <br /> 3/23/11<br /> <br /> United States District Court, S. D. New York.<br /> DENNISON MANUFACTURING COMPANY, Plaintiff,<br /> v.<br /> BEN CLEMENTS AND SONS, INC., Defendant.<br /> <br /> No. 74 Civ. 979 (CES).<br /> March 14, 1979.<br /> <br /> The case is about the infringing of the device to connect clothing tags to the clothes themselves. The idea was to use plastic molded attachments to mark the clothing, to convey info to the customers, (brand name, price and size)The district court stated that the none of the claims of the patent were invalid because they didn't point out the distinct subject mater of the invention. Furthermore, that despite parts of the device existing in the prior art, it was not obvious to one of ordinary skill in the art. Then the secondary considerations of commercial success, long felt need, industry recognition and failure of others all helped.<br /> In the end, the claims were invalid and infringed.</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=ESB_Briefs&diff=3971 ESB Briefs 2011-03-04T01:56:38Z

<p>E W Hitchler: </p> <hr /> <div>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.<br /> * Reply Brief for Respondents. (Feb. 27, 1939)<br /> #Michael Madden<br /> #Hwong1<br /> #croetzel<br /> #kroshak<br /> #Adam Mahood<br /> #Michael Ackroyd<br /> #<br /> #<br /> #<br /> #<br /> * Reply Brief for Petitioner. (Feb. 7, 1939)<br /> #Cmadiga1<br /> #90144463<br /> #901422128<br /> #jpotter2<br /> #ewolz<br /> #E W Hitchler<br /> #<br /> #<br /> #<br /> #<br /> * Brief for Respondents (Jan. 28, 1939)<br /> #LMiller<br /> #Josh Bradley<br /> #Brobins<br /> #Ebingle<br /> #kyergler<br /> #BCastel1<br /> #<br /> #<br /> #<br /> #<br /> * Brief for Petitioner. (Jan. 1939)<br /> #Kschlax<br /> #Andy Stulc<br /> #Mzahm<br /> #Rabot<br /> #Peter Mitros<br /> #Jacob Marmolejo<br /> #<br /> #<br /> #<br /> #</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=3838 User:E W Hitchler 2011-02-27T23:30:24Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> <br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> <br /> '''Hotchkiss v. Greenwood (1850)'''<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> <br /> '''A&P Tea v. Supermarket Equipment (1950)'''<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> <br /> '''35 USC 103 (1952)'''<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> <br /> '''Graham v. John Deere (1966)'''<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> The Graham v. John Deere case includes two different cases. There was the case that involved John Deere and mechanism for plows, but there was also the case that involved the tops of spray bottles.<br /> The patent for the Graham case related to a spring clamp that permitted plow shanks to be pushed upward as the plow was dragged through rocky soil terrain. The spring then forces the shanks back into postion once the mass is gone. The court did an engineering analysis and said that the patent was not valid because it failed the obviousness test. <br /> The other case involved the shipping design of sprayer caps. One cap engaged with a washer or gasket which rested on the upper surface and the cap screwed directly on the container. The court decided that the patent was not valid because it failed the non-obviousness test.<br /> <br /> '''U.S. v. Adams (1966)'''<br /> 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.<br /> The Adams case relates to an electrical battery that is non-rechargeable. The concept of the invention was that it was light in weight, provided constant voltage, needed no acids and it was operable in extreme cold and extreme hot conditions. However, the only down side was that once the battery was activated it can't be turned off. When Adams went to go present his invention, the government stated that what he was stating was absurd and it couldn't be done. However, in WWII, the government ended up using it and they never notified Adams and when Adams did find out and asked for compensation, he was denied. In the end, it was found that Adams patent was valid and what the government did was wrong. The government tried to say that his invention lacked novelty, even though his battery was water activated and no other battery was like his.<br /> <br /> '''Anderson's Black Rock v. Pavement Salvage (1969)'''<br /> 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 known elements can become patentable.<br /> This case involves the problem when one puts together existing ideas or concepts together in another way and if it can become patentable. The case specifically presents the "Means for Treating Bituminous Pavement." The problem was that when they use to put on new material there would be formation of cracks and dirt and water would enter causing deterioration. The patent uses an old technology which was used in 1905 to heat up asphalt. After that, the patent suggest to use a spreader for putting down bituminous material and then finally a tamper and screed for shaping the new material. The respondent explained that the patent uses a combo of prior art, for a new and useful concept to get rid of a cold joint. At the end of the case, the final verdict was that it was not an invention by the obvious and non-obviousness standard. <br /> <br /> '''Suggestion to Combine'''<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> <br /> '''Objective Tests'''<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> <br /> '''The Inventive Step'''<br /> <br /> '''Relationship with Novelty'''<br /> Novelty is one of the standards that must be passed in order to obtain a patent. It deals with whether an invention is new or not. Sometimes there are ideas that seem new, but are really just a new concept of the idea. So in reality, the idea is more innovative. However, maybe that does deserve patentability. <br /> <br /> '''Nonobviousness vs. Invention'''<br /> Nonobviousness is a term that I have learned about in IP Law class. It deals when an individual is trying to patent something and the office will determine if it is patentable by three simple benchmarks it has to past, (Non-obviousness, novelty, and utility). Many of the cases that come up deal with non-obviousness in the sense that could an individual who is familiar with the art, come up with the same idea. If the answer is yes, then the item or concept is not an invention.<br /> <br /> '''Secondary Considerations'''<br /> Secondary Considerations are a last resort option that one could fall back on if they have been denied a patent due to an "obviousness" rejection under Section 103. Some secondary considerations are the following: the success of the invention commercially, the unresolved needs, failures by others, skepticism by experts, the admiration by others, and copying of the invention by other individuals. <br /> <br /> '''Ordinary Skill in the Art'''<br /> A person with ordinary skill in the art comes into play when a court is looking into a patent and they are determining whether or not an invention will pass the obviousness and non-obviousness standard. The court will look into this when there is an invention that is similar to something that exists or if it does a similar function or if it uses a bunch old existing arts and then combines them to do some task. <br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US<br /> <br /> 2/28/11<br /> <br /> Non-Obviousness<br /> <br /> To determine whether or not one is able to attain a patent, an individual must take their invention to the patent office and their invention must satisfy three requirements, non-obviousness, novelty, and utility. If the invention satisfies the three requirements, the inventor attains a patent for 17 years and reaps the benefits of having exclusive rights to their invention. However, attaining a patent can be challenging because there are lots of problems when trying to determine whether an invention satisfies the three requirements. One problem is satisfying the requirement of non-obviousness. This requirement is found in the United States Code: Title 35, Section 103 (35 USC 103), and is sometimes known as the most difficult patent issue to determine with facts. The following document will break down the requirement of non-obviousness by first, providing a guideline of non-obvious, second, outlining the policy considerations that provide a foundation for the requirement, third, a history of the subject through various cases, and finally, a proposed standard for non-obviousness.<br /> There are fundamentally three parts that determine whether an invention is non-obvious as well as secondary considerations. The first part is the content and scope of the prior art. This is talking about the relevant subject matter in the background of the art in which the idea or concept is being patented. The next part is during the time the inventions was made what are the differences between the subject at hand and the prior art. This is describing when the inventor is inventing his/her invention; the subject matter has to have obvious differences from the prior art that is specific to the same field. The last part is in the art, the level of “ordinary skill.” This means that the subject matter pertaining to a person that in the same art could do with basic skills. <br /> Furthermore, there are secondary considerations that help determine non-obviousness. First, there is the invention’s success as a product. Second, the unresolved needs that have been long felt. Third, the failure of others in a similar background. Fourth, praise by others. Fifth, the invention being copied by other competitors. Sixth, the identification of a problem. Seventh, teaching away by competitors in the art. And eighth, lack of support of the industry relating to the new invention.<br /> In 1421, Filippo Brunelleschi, a Florentine architect received a patent for a hoisting gear mounted on a barge that carried marble along the Arno River. Then in 1449, King Henry VI issued a 20 year patent to John of Utynam because he showed England how to create colored glass. When the United Sates became independent of Britain and wrote the United States Constitution, they included a section that alluded to patents. In Artile I, Section 8 of the United States Constitution, it states: “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;”<br /> Then in 1790, the first Congress adopted the Patent Act and on July 31, 1790 issued the first patent to Samuel Hopkins of Vermont for a technique to produce potash. From then on patents started to be issued. However, as more patents were issued problems arose with a threshold for inventiveness. This would ultimately transform into the idea of non-obviousness. Prior to 1850, when an invention came out, the only requirement was novelty and utility and non-obviousness were unheard of. The case that basically established non-obviousness was Hotchkiss v. Greenwood (1850). The case was described that the patent granted for a “new and useful improvement in making door and other knobs of clay used in pottery…” The knob of the door used to be made out of a metal or wood, and the new idea was to use clay instead because it was cheaper. They found that the patent was invalid because that despite the patent satisfying the requirement of a new idea and it was useful, it didn’t require any more ingenuity and skill to construct it. It was stated that, "....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." Therefore, after this case it was made clear that not only must a invention satisfy the novelty requirement, but it must also satisfy the non-obvious requirement. <br /> The next case that relates to no-obviousness is A. & P. Tea Co. v. Supermarket Corp., (1950). This case relates to a cashier’s counter that will be able to move groceries to a clerk and repeat the process. The main idea behind this invention is the counter was extended and sped up the process providing more convenience to the customers. The lower courts approved the patent because “the conception of a counter with an extension to receive a bottomless self-unloading tray with which to push the contents of the tray in front of the cashier was a decidedly novel feature and constitutes a new and useful combination.” The Supreme Court reversed the decision because even though it was new and useful, “The defect that we find in this judgment is that a standard of invention appears to have been used that is less exacting than that required where a combination is made up entirely of old components.” The case dealt with three significant issues. First, it dealt with the unresolved needs that have been long felt, which is one of secondary considerations for non-obviousness. Second, it brought up the fact that Thomas Jefferson wanted patents to be issued that promoted the advancement of science and furthered human knowledge and was new and useful. Thirdly, it brought up that all inventions are basically a mixture of old elements. <br /> The next case presented is Lyon v. Bausch & Lomb, (1955). This case presents a process to coat optical elements and improve the process to produce a “hard, durable and tenacious evaporated film on a surface of optical elements…” Lyon argues in the case that his two step process was unique and no other previous processes had this sequence. The court in the end stated the following: “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.” The case alluded back to the problem of whether a person in the same art and with ordinary skill could have done the same as Lyon, but clearly the court said it couldn’t be done.<br /> The next case shown is Graham v. John Deere (1966). The case relates to chisel plows. The problem with the chisel plow was that the shanks were attached rigidly to the frames. When dragged through certain terrains that contained rocks, a vibration was sent throughout the frame and titanic forces were transmitted and cause the shanks to break. Graham solved this problem by using a spring clamp instead of rigid attachment, this would allow the plows to be pushed and come back down when an object was encountered. The case touched on a lot of requirements to determine non-obviousness and a few of the secondary considerations as well. Since, John Deere had a problem with Graham’s idea, the content of the prior art and the differences between them was a big a factor as well as the ordinary skill of the relevant art. Now, despite that the invention satisfied a couple of the secondary considerations such as long felt needs that had not been resolved as well as no one else had found a solution to the constant breaking of shanks, the court still found the patent invalid. The court stated “The only other effective place available in the arrangement was to attach it below the hinge plate and run it through a [383 U.S. 1, 25] stirrup or bracket that would not disturb its flexing qualities. Certainly a person having ordinary skill in the prior art, given the fact that the flex in the shank could be utilized more effectively if allowed to run the entire length of the shank, would immediately see that the thing to do was what Graham did, i. e., invert the shank and the hinge plate.” This basically is the requirement of “level of ordinary skill” and the court said that what Graham did presented “no operative mechanical distinctions, much less nonobvious differences.”<br /> The next case is U.S. v. Adams (1966). The case describes the invention of a new, non-rechargeable battery. The battery’s specifications were as follows: provided constant voltage, did not need to use acids, light weight with respect to capacity, no harmful fumes generated, and could operate in extreme hot and cold conditions. However, the down side was that once it was activated it could not be shut off. The Government challenged Adam’s patent on the grounds of novelty as well as obviousness. They found that Adam’s battery was novel due to the fact this battery was water activated and no other battery was like that. Furthermore, Adam’s battery was non-obvious since “the operating characteristics of the Adams battery have been shown to have been unexpected and to have far surpassed then-existing wet batteries.” The battery did contain elements “well known in the prior art,” however; the manner in which Adams combined them required “a person reasonably skilled.” <br /> With all these cases determining whether some patents are non-obvious or not, I would like to propose a standard for the non-obvious requirement.<br /> To start off, the item would need to pass the following:<br /> It has to be different than related art. <br /> It has to be relevant in the prior art.<br /> It can’t be done by an ordinary person in the skill of the art. (An engineering analysis will be needed)<br /> It must solve a problem, even if the problem has been solved.<br /> It must better an idea, but needs to give rights to the previous idea.<br /> If it is a combination of existing elements, the manner in which assembled cannot involve a person of ordinary skill in art, but high skill.<br /> If it has results that are not expected.<br /> If many people are trying to copy it.<br /> This is the standard, and an "it" must be satisfied and "if" will be a secondary consideration.</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=3557 User:E W Hitchler 2011-02-16T03:37:12Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> <br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> <br /> '''Hotchkiss v. Greenwood (1850)'''<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> <br /> '''A&P Tea v. Supermarket Equipment (1950)'''<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> <br /> '''35 USC 103 (1952)'''<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> <br /> '''Graham v. John Deere (1966)'''<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> The Graham v. John Deere case includes two different cases. There was the case that involved John Deere and mechanism for plows, but there was also the case that involved the tops of spray bottles.<br /> The patent for the Graham case related to a spring clamp that permitted plow shanks to be pushed upward as the plow was dragged through rocky soil terrain. The spring then forces the shanks back into postion once the mass is gone. The court did an engineering analysis and said that the patent was not valid because it failed the obviousness test. <br /> The other case involved the shipping design of sprayer caps. One cap engaged with a washer or gasket which rested on the upper surface and the cap screwed directly on the container. The court decided that the patent was not valid because it failed the non-obviousness test.<br /> <br /> '''U.S. v. Adams (1966)'''<br /> 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.<br /> The Adams case relates to an electrical battery that is non-rechargeable. The concept of the invention was that it was light in weight, provided constant voltage, needed no acids and it was operable in extreme cold and extreme hot conditions. However, the only down side was that once the battery was activated it can't be turned off. When Adams went to go present his invention, the government stated that what he was stating was absurd and it couldn't be done. However, in WWII, the government ended up using it and they never notified Adams and when Adams did find out and asked for compensation, he was denied. In the end, it was found that Adams patent was valid and what the government did was wrong. The government tried to say that his invention lacked novelty, even though his battery was water activated and no other battery was like his.<br /> <br /> '''Anderson's Black Rock v. Pavement Salvage (1969)'''<br /> 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 known elements can become patentable.<br /> This case involves the problem when one puts together existing ideas or concepts together in another way and if it can become patentable. The case specifically presents the "Means for Treating Bituminous Pavement." The problem was that when they use to put on new material there would be formation of cracks and dirt and water would enter causing deterioration. The patent uses an old technology which was used in 1905 to heat up asphalt. After that, the patent suggest to use a spreader for putting down bituminous material and then finally a tamper and screed for shaping the new material. The respondent explained that the patent uses a combo of prior art, for a new and useful concept to get rid of a cold joint. At the end of the case, the final verdict was that it was not an invention by the obvious and non-obviousness standard. <br /> <br /> '''Suggestion to Combine'''<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> <br /> '''Objective Tests'''<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> <br /> '''The Inventive Step'''<br /> <br /> '''Relationship with Novelty'''<br /> Novelty is one of the standards that must be passed in order to obtain a patent. It deals with whether an invention is new or not. Sometimes there are ideas that seem new, but are really just a new concept of the idea. So in reality, the idea is more innovative. However, maybe that does deserve patentability. <br /> <br /> '''Nonobviousness vs. Invention'''<br /> Nonobviousness is a term that I have learned about in IP Law class. It deals when an individual is trying to patent something and the office will determine if it is patentable by three simple benchmarks it has to past, (Non-obviousness, novelty, and utility). Many of the cases that come up deal with non-obviousness in the sense that could an individual who is familiar with the art, come up with the same idea. If the answer is yes, then the item or concept is not an invention.<br /> <br /> '''Secondary Considerations'''<br /> Secondary Considerations are a last resort option that one could fall back on if they have been denied a patent due to an "obviousness" rejection under Section 103. Some secondary considerations are the following: the success of the invention commercially, the unresolved needs, failures by others, skepticism by experts, the admiration by others, and copying of the invention by other individuals. <br /> <br /> '''Ordinary Skill in the Art'''<br /> A person with ordinary skill in the art comes into play when a court is looking into a patent and they are determining whether or not an invention will pass the obviousness and non-obviousness standard. The court will look into this when there is an invention that is similar to something that exists or if it does a similar function or if it uses a bunch old existing arts and then combines them to do some task. <br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=3556 User:E W Hitchler 2011-02-16T03:26:30Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> <br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> <br /> '''Hotchkiss v. Greenwood (1850)'''<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> <br /> '''A&P Tea v. Supermarket Equipment (1950)'''<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> <br /> '''35 USC 103 (1952)'''<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> <br /> '''Graham v. John Deere (1966)'''<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> The Graham v. John Deere case includes two different cases. There was the case that involved John Deere and mechanism for plows, but there was also the case that involved the tops of spray bottles.<br /> The patent for the Graham case related to a spring clamp that permitted plow shanks to be pushed upward as the plow was dragged through rocky soil terrain. The spring then forces the shanks back into postion once the mass is gone. The court did an engineering analysis and said that the patent was not valid because it failed the obviousness test. <br /> The other case involved the shipping design of sprayer caps. One cap engaged with a washer or gasket which rested on the upper surface and the cap screwed directly on the container. The court decided that the patent was not valid because it failed the non-obviousness test.<br /> <br /> '''U.S. v. Adams (1966)'''<br /> 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.<br /> The Adams case relates to an electrical battery that is non-rechargeable. The concept of the invention was that it was light in weight, provided constant voltage, needed no acids and it was operable in extreme cold and extreme hot conditions. However, the only down side was that once the battery was activated it can't be turned off. When Adams went to go present his invention, the government stated that what he was stating was absurd and it couldn't be done. However, in WWII, the government ended up using it and they never notified Adams and when Adams did find out and asked for compensation, he was denied. In the end, it was found that Adams patent was valid and what the government did was wrong. The government tried to say that his invention lacked novelty, even though his battery was water activated and no other battery was like his.<br /> <br /> '''Anderson's Black Rock v. Pavement Salvage (1969)'''<br /> 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 known elements can become patentable.<br /> This case involves the problem when one puts together existing ideas or concepts together in another way and if it can become patentable. The case specifically presents the "Means for Treating Bituminous Pavement." The problem was that when they use to put on new material there would be formation of cracks and dirt and water would enter causing deterioration. The patent uses an old technology which was used in 1905 to heat up asphalt. After that, the patent suggest to use a spreader for putting down bituminous material and then finally a tamper and screed for shaping the new material. The respondent explained that the patent uses a combo of prior art, for a new and useful concept to get rid of a cold joint. At the end of the case, the final verdict was that it was not an invention by the obvious and non-obviousness standard. <br /> <br /> '''Suggestion to Combine'''<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> <br /> '''Objective Tests'''<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> <br /> '''The Inventive Step'''<br /> <br /> '''Relationship with Novelty'''<br /> Novelty is one of the standards that must be passed in order to obtain a patent. It deals with the <br /> <br /> '''Nonobviousness vs. Invention'''<br /> Nonobviousness is a term that I have learned about in IP Law class. It deals when an individual is trying to patent something and the office will determine if it is patentable by three simple benchmarks it has to past, (Non-obviousness, novelty, and utility). Many of the cases that come up deal with non-obviousness in the sense that could an individual who is familiar with the art, come up with the same idea. If the answer is yes, then the item or concept is not an invention.<br /> <br /> '''Secondary Considerations'''<br /> Secondary Considerations are a last resort option that one could fall back on if they have been denied a patent due to an "obviousness" rejection under Section 103. Some secondary considerations are the following: the success of the invention commercially, the unresolved needs, failures by others, skepticism by experts, the admiration by others, and copying of the invention by other individuals. <br /> <br /> '''Ordinary Skill in the Art'''<br /> A person with ordinary skill in the art comes into play when a court is looking into a patent and they are determining whether or not an invention will pass the obviousness and non-obviousness standard. The court will look into this when there is an invention that is similar to something that exists or if it does a similar function or if it uses a bunch old existing arts and then combines them to do some task. <br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=3555 User:E W Hitchler 2011-02-16T02:35:02Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> <br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> <br /> '''Hotchkiss v. Greenwood (1850)'''<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> <br /> '''A&P Tea v. Supermarket Equipment (1950)'''<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> <br /> '''35 USC 103 (1952)'''<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> <br /> '''Graham v. John Deere (1966)'''<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> The Graham v. John Deere case includes two different cases. There was the case that involved John Deere and mechanism for plows, but there was also the case that involved the tops of spray bottles.<br /> The patent for the Graham case related to a spring clamp that permitted plow shanks to be pushed upward as the plow was dragged through rocky soil terrain. The spring then forces the shanks back into postion once the mass is gone. The court did an engineering analysis and said that the patent was not valid because it failed the obviousness test. <br /> The other case involved the shipping design of sprayer caps. One cap engaged with a washer or gasket which rested on the upper surface and the cap screwed directly on the container. The court decided that the patent was not valid because it failed the non-obviousness test.<br /> <br /> '''U.S. v. Adams (1966)'''<br /> 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.<br /> The Adams case relates to an electrical battery that is non-rechargeable. The concept of the invention was that it was light in weight, provided constant voltage, needed no acids and it was operable in extreme cold and extreme hot conditions. However, the only down side was that once the battery was activated it can't be turned off. When Adams went to go present his invention, the government stated that what he was stating was absurd and it couldn't be done. However, in WWII, the government ended up using it and they never notified Adams and when Adams did find out and asked for compensation, he was denied. In the end, it was found that Adams patent was valid and what the government did was wrong. The government tried to say that his invention lacked novelty, even though his battery was water activated and no other battery was like his.<br /> <br /> '''Anderson's Black Rock v. Pavement Salvage (1969)'''<br /> 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.<br /> <br /> Suggestion to Combine<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> <br /> Objective Tests<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> <br /> The Inventive Step<br /> <br /> Relationship with Novelty<br /> <br /> Nonobviousness vs. Invention<br /> <br /> Secondary Considerations<br /> <br /> Ordinary Skill in the Art<br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=Bilski_brief_list&diff=3446 Bilski brief list 2011-02-13T20:19:07Z

<p>E W Hitchler: </p> <hr /> <div>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.<br /> <br /> #Reply Brief for Petitioners (Oct. 26, 2009) <br /> #jpotter2 <br /> #Adam T. Letcher<br /> #Craigkrzyskowski<br /> #Brief of Amicus Curiae William Mitchell College of Law Intellectual Property Institute in Support of Respondent (Oct. 2, 2009) <br /> #ebingle<br /> #Rabot<br /> #Eric Paul<br /> #Brief of Amici Curiae American Insurance Association, the Hartford Financial Services, Jackson National Life Insurance Company, Pacific Life Insurance Company, Sun Life Assurance Company Of Canada (U.S.), and Transamerica Life Insurance Company in Support of Respondent (Oct. 2, 2009) <br /> #Brief For Amicus Curiae Computer & Communications Industry Association in Support of Respondent (Oct. 2, 2009) <br /> #Brief of Software & Information Industry Association (SIIA) as Amicus Curiae in Support of Respondent (Oct. 2, 2009) <br /> #Brief of Amici Curiae Foundation for a Free Information Infrastructure, IP Justice, and Four Global Software Professionals and Business Leaders in Support of Respondent (Oct. 2, 2009) <br /> #Brief for Free Software Foundation as Amicus Curiae in Support of Respondent (Oct. 2, 2009) <br /> #Brief for Bank of America Corporation, Barclays Capital Inc., The Clearing House Association L.L.C., The Financial Services Roundtable, Google Inc., MetLife, Inc., and Morgan Stanley as Amici Curiae in Support of Respondent (Oct. 2, 2009) <br /> #Brief Amici Curiae of Professors Peter S. Menell and Michael J. Meurer In Support of Respondent (Oct. 2, 2009) <br /> #Brief of Entrepreneurial and Consumer Advocates Amici Curiae in Support of Respondent (Oct. 2, 2009) <br /> #Amicus Curiae Brief in Support of the Respondent, Submitted on Behalf of Adamas Pharmaceuticals, Inc. and Tethys Bioscience, Inc. (Oct. 2, 2009) <br /> #KyleR <br /> #Andy Stulc <br /> #Brief for Amicus Curiae Mark Landesmann in Support of Affirmance (Oct. 2, 2009) <br /> #Amicus Curiae Brief of Center for Advanced Study and Research in Intellectual Property (CASRIP) of the University of Washington School of Law, and of CASRIP Research Affiliate Scholars, in Support of Affirmance of the Judgment in Favor of Respondent (Oct. 1, 2009) <br /> #Kevin Godshall<br /> #Amici Curiae Brief of Internet Retailers in Support of Respondent (Oct. 1, 2009) <br /> #Brief for the Respondent (Sep. 25, 2009) <br /> #Brief of the Intellectual Property Section of the Nevada State Bar, as Amicus Curiae in Support of Respondent (Sep. 25, 2009) <br /> #Brief of Professor Lee A. Hollaar and IEEE-USA as Amici Curiae in Support of Affirmance (Sep. 1, 2009) <br /> #Brief of Amicus Curiae Austin Intellectual Property Law Association in Support of Neither Party (Aug. 6, 2009) <br /> #Brief of Amici Curiae Entrepreneurial Software Companies in Support of Petitioner (Aug. 6, 2009) <br /> #E W Hitchler<br /> #Brief of Amicus Curiae American Intellectual Property Law Association in Support of Neither Party (Aug. 6, 2009) <br /> #Brief of Amici Curiae Biotechnology Industry Organization, Advanced Medical Technology Association, Wisconsin Alumni Research Foundation & The Regents of the University of California in Support of Neither Party (Aug. 6, 2009) <br /> #Mzahm<br /> #Brief of Pharmaceutical Research and Manufacturers of America as Amicus Curiae in Support of Neither Party (Aug. 6, 2009) <br /> #Hamburgler <br /> #Brief of F%21ed%21eration Internationale Des Conseils En Propri%21et%21e Industrielle as Amicus Curiae in Support of Neither Party (Aug. 6, 2009) <br /> #Brief of Amicus Curiae Law Professor Kevin Emerson Collins in Support of Neither Party (Aug. 6, 2009) <br /> #Brief of Amicus Curiae Legal OnRamp in Support of Neither Party (Aug. 6, 2009) <br /> #Brief of Amicus Curiae John Sutton in Support of Petitioners (Aug. 6, 2009) <br /> #Brief of Amicus Curiae Novartis Corporation Supporting Petitioners (Aug. 6, 2009) <br /> #Brief Amicus Curiae of The Federal Circuit Bar Association in Support of Neither Party (Aug. 6, 2009) <br /> #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) <br /> #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) <br /> #Brief Amici Curiae of 20 Law and Business Professors in Support of Neither Party (Aug. 6, 2009) <br /> #Brief of Amicus Curiae The Houston Intellectual Property Law Association in Support of Petitioners (Aug. 6, 2009) <br /> #Brief of Franklin Pierce Law Center as Amicus Curiae in Support of Petitioners (Aug. 6, 2009) <br /> #LMiller<br /> #Brief of TELES AG as Amicus Curiae in Support of Neither Party (Aug. 6, 2009) <br /> #Brief of Amicus Curiae San Diego Intellectual Property Law Association in Support of Neither Party on the Merits (Aug. 6, 2009) <br /> #Brief of Robert R. Sachs and Daniel R. Brownstone as Amici Curiae in Support of Neither Party (Aug. 6, 2009) <br /> #Brief of Amicus Curiae the University of South Florida in Support of Petitioners (Aug. 6, 2009) <br /> #Brief of Amicus Curiae AwakenIP, LLC in Support of Petitioners (Aug. 6, 2009) <br /> #Pmitros <br /> #Brief of Dr. Ananda Chakrabarty as Amicus Curiae in Support of Petitioners (Aug. 6, 2009) <br /> #Brief of Georgia Biomedical Partnership, Inc. as Amicus Curiae in Support of Petitioners (Aug. 5, 2009) <br /> #Brief for Prometheus Laboratories Inc. as Amicus Curiae in Support of Neither Party (Aug. 5, 2009) <br /> #Brief of Amicus Curiae Intellectual Property Owners Association in Support of Neither Party (Aug. 5, 2009) <br /> #Brief of Amicus Curiae Boston Patent Law Association in Support of Petitioners (Aug. 5, 2009) <br /> #Brief for the Business Software Alliance as Amicus Curiae in Support of Affirmance (Aug. 5, 2009) <br /> #Brief of Amicus Curiae Washington State Patent Law Association in Support of Petitioner (Aug. 5, 2009) <br /> #Bobby Powers<br /> #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) <br /> #Brief of Amicus Curiae Caris Diagnostics, Inc. in Support of Petitioners (Aug. 5, 2009) <br /> #Brief of the Intellectual Property Law Association of Chicago as Amicus Curiae Supporting Neither Party (Aug. 5, 2009) <br /> #Brief of Monogram Biosciences, Inc. and Genomic Health, Inc. as Amici Curiae in Support of Neither Party (Aug. 5, 2009) <br /> #Brief of Amicus Curiae Raymond C. Meiers in Support of Neither Party (Aug. 5, 2009) <br /> #Brief of On Time Systems, Inc. as Amicus Curiae in Support of Neither Party (Aug. 4, 2009) <br /> #Brief of Amicus Curiae Conejo Valley Bar Association in Support of Neither Party (Aug. 3, 2009) <br /> #Brief For Petitioners (Jul. 30, 2009) <br /> #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) <br /> #Brief for the State of Oregon as Amicus Curiae in Support of Neither Party (Jul. 24, 2009) <br /> #ewolz <br /> #kristen kemnetz<br /> #Brief for the Respondent in Opposition (May 1, 2009) <br /> #Brief of Koninklijke Philips Electronics N.V. as Amicus Curiae in Support of Petitioners (Mar. 2, 2009) <br /> #Brief of Amicus Curiae Boston Patent Law Association in Support of Petitioners (Mar. 2, 2009) <br /> #Brief of Accenture and Pitney Bowes Inc. as Amici Curiae in Support of Petitioners (Mar. 2, 2009) <br /> #Brief Amicus Curiae of Franklin Pierce Law Center in Support of Certiorari (Mar. 2, 2009) <br /> #Brief of Amica Curiae Anne E. Barschall, Pro Se in Support of Petitioners (Mar. 2, 2009) <br /> #Brief of Amicus Curiae American Intellectual Property Law Association in Support of the Petition for a Writ of Certiorari (Mar. 2, 2009) <br /> #Jmarmole<br /> #Brief of John P. Sutton Amicus Curiae Supporting Petitioners (Feb. 25, 2009)</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=3273 User:E W Hitchler 2011-02-11T02:46:20Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> <br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> <br /> '''Hotchkiss v. Greenwood (1850)'''<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> <br /> '''A&P Tea v. Supermarket Equipment (1950)'''<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> <br /> '''35 USC 103 (1952)'''<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> <br /> '''Graham v. John Deere (1966)'''<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> <br /> '''U.S. v. Adams (1966)'''<br /> 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.<br /> <br /> '''Anderson's Black Rock v. Pavement Salvage (1969)'''<br /> 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.<br /> <br /> Suggestion to Combine<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> <br /> Objective Tests<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> <br /> The Inventive Step<br /> <br /> Relationship with Novelty<br /> <br /> Nonobviousness vs. Invention<br /> <br /> Secondary Considerations<br /> <br /> Ordinary Skill in the Art<br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=3270 User:E W Hitchler 2011-02-11T02:43:57Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> <br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> <br /> '''Hotchkiss v. Greenwood (1850)'''<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> A&P Tea v. Supermarket Equipment (1950)<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> 35 USC 103 (1952)<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> Graham v. John Deere (1966)<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> U.S. v. Adams (1966)<br /> 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.<br /> Anderson's Black Rock v. Pavement Salvage (1969)<br /> 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.<br /> Suggestion to Combine<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> Objective Tests<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> The Inventive Step<br /> <br /> Relationship with Novelty<br /> <br /> Nonobviousness vs. Invention<br /> <br /> Secondary Considerations<br /> <br /> Ordinary Skill in the Art<br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=3267 User:E W Hitchler 2011-02-11T02:41:35Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.<br /> <br /> 2/9/11<br /> <br /> NONOBVIOUSNESS<br /> Contents [hide]<br /> 1 Historical Development<br /> 1.1 Hotchkiss v. Greenwood (1850)<br /> 1.2 A&P Tea v. Supermarket Equipment (1950)<br /> 1.3 35 USC 103 (1952)<br /> 1.4 Lyon v. Bausch & Lomb (1955)<br /> 1.5 Graham v. John Deere (1966)<br /> 1.6 U.S. v. Adams (1966)<br /> 1.7 Anderson's Black Rock v. Pavement Salvage (1969)<br /> 2 Suggestion to Combine<br /> 3 Objective Tests<br /> 4 The Inventive Step<br /> 5 Relationship with Novelty<br /> 6 Nonobviousness vs. Invention<br /> 7 Secondary Considerations<br /> 8 Ordinary Skill in the Art<br /> Historical Development<br /> <br /> The following are some cases through history that trace the evolution of what is currently the nonobviousness standard.<br /> Hotchkiss v. Greenwood (1850)<br /> 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.<br /> ...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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 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,<br /> "....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."<br /> 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.<br /> A&P Tea v. Supermarket Equipment (1950)<br /> 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:<br /> First, that the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.<br /> 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.<br /> Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.<br /> 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.<br /> Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.<br /> 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."<br /> 35 USC 103 (1952)<br /> This section of the code was adopted in 1952 and prohibits a patent in a case where<br /> 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.<br /> Lyon v. Bausch & Lomb (1955)<br /> In Lyon v. Bausch & Lomb, 224 F.2d 530 (1955) Learned Hand, in his brilliance, expounded on the new standard thusly:<br /> 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<br /> Graham v. John Deere (1966)<br /> 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<br /> scope and content of the prior art;<br /> differences between the prior art and the claims at issue;<br /> level of ordinary skill in the pertinent art; and,<br /> secondary considerations, including:<br /> commercial success of the invention;<br /> long-felt but unsolved needs;<br /> failure of others to find a solution, etc.<br /> U.S. v. Adams (1966)<br /> 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.<br /> Anderson's Black Rock v. Pavement Salvage (1969)<br /> 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.<br /> Suggestion to Combine<br /> <br /> 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.<br /> "When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references."<br /> "[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.<br /> Objective Tests<br /> <br /> Two important considerations were the focus of Hybritech v. Monoclonal Antiboties, 802 F.2d 1375.<br /> 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.<br /> The secondary considerations, commercial success, are not optional considerations. If evidence is available pertaining to them, they must be considered by the court.<br /> 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.<br /> The Inventive Step<br /> <br /> Relationship with Novelty<br /> <br /> Nonobviousness vs. Invention<br /> <br /> Secondary Considerations<br /> <br /> Ordinary Skill in the Art<br /> <br /> Reiner v. I. Leon Co. (full text)<br /> Reiner v. I. Leon Co.<br /> South Corp. v. US (full text)<br /> South Corp. v. US</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=2246 User:E W Hitchler 2011-02-04T05:03:14Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.<br /> <br /> 2/4/11<br /> <br /> The Graham 811' patent is obviously similar to the Graham V. John Deere case. The 811' patent states "The spring 66 thus retained in compression to keep the head 72 in rocking engagement with grove 68 of the gripping portion or face 63 of the fulcrum plate 63 and the fulcrum plate in contact with the lower face 63 of the end portion of the shank 33 and the upper face 34 of the end portion of the shank 33 against the clamping portion 42...The ground working tools are thus resilently supported between the clamping embers or parts and are adapted to rock thereon as permitted by action of the springs to effect pumping action of the ground working tools incidental to drag of the tools through the ground and resiliency of the compression springs so as to produce the furrows the and chisel cuts indicated at "a" and forming the pockets indicated "b" in Figs 4 and 5 of the drawings." <br /> The pumping action of the spring is to give into the conditions of rocky soil and "adapt". Furthermore, the article later states "the fulcrum member and extending through an elongated opening in said shank and through the shank to said bracket and provide sufficient longitudinal relative movement between the shank and fulcrum member to accommodate oscillation of the shank, and a spring having one end engaged with said rod and the other end engaged with the bracket for yielding permitting rocking movement of the fulcrum member for effecting said pumping action of the ground working device." <br /> The patent is very obvious to the device by John Deere, which is "a device designed to absorb shock from plow shanks in rocky soil to prevent damage"<br /> <br /> However, the patent maybe nonobvious because John Deere is using a "clamp" and not a spring. Plus they say it produces an "old result in a cheaper and otherwise more advantageous way." Which if it is, its advancing and promoting the Progress of.. Useful Arts. Furthermore, it seems that Graham's 811' patent is more of a concept for the whole plow and not specifically the absorption spring, but maybe I am misreading the patent. <br /> Though it is hard to say because the products are very similar, but if anything John Deere is perfecting the concept with an more effective way.</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=1833 User:E W Hitchler 2011-01-30T21:52:32Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it would satisfy the nonobviousness requirement of 35 USC 103. I do think that any ordinary person in the skill would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do believe any regular person skilled in the art can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=1823 User:E W Hitchler 2011-01-30T21:10:16Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it might not satisfy the nonobviousness requirement of 35 USC 103. I do not think that any ordinary person would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the second patent I found from my patent of the Electric Brush would be patentable as well. The patent is 3,254,189 for Electrical Contact Members having a Plurality of Refractory Metal Fibers Embedded therein. The patent is similar to the other patent in the sense it is trying to improve something that already exists. Now the withe A & P case thats what the invention was, however, the inventor merely merged existing things together and then just lengthened the counter. That was a great idea to help things go faster, but I don't think that it was very novel. Then, sometimes there are lots of patents that are improving an existing idea already, so it is hard to determine what does count and what doesn't count. And with the nonobiviousness rule, it goes along with what I said for the earlier patent. I do not believe any regular person can come up with such an idea, but that is why the nonobviousness rule has evolved and has some give in my opinion.</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=1822 User:E W Hitchler 2011-01-30T20:48:19Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> <br /> 1/28/11<br /> <br /> With the analysis of A. & P. Tea Co. v. Supermarket Corp. the first patent I found from my patent of the Electric Brush would be patentable. The patent is 3,357,824 for Copper Alloys. The Copper alloy has high conductivity and with such small and uniform grain size which gave it superior ductility. The invention is to improve the the copper base alloy to give it high ductility but still attaining high electrical/thermal conductivity and strength. The analysis of the A & P case was improving a system but the court said that this was just throwing a bunch of things that existed and lengthening the counter. While it sounds simple, this invention is very scientific and not just any person can add elements to the alloy to help increase the conductivity. I do feel that it might not satisfy the nonobviousness requirement of 35 USC 103. I do not think that any ordinary person would be able to this invention because the work is very technical. However, as our society has progressed the nonobviousness rule has changed. Obviously, not everyone can do something that someone else can do, so that is why i think that the nonobviousness rule has some give for certain situations.</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=1819 User:E W Hitchler 2011-01-30T19:48:09Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.<br /> <br /> <br /> 1/28/11</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=1099 User:E W Hitchler 2011-01-25T04:08:40Z

<p>E W Hitchler: </p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for the production of multifibers that will reduce friction and allow fibers to individually flex.</div>

E W Hitchler https://controls.ame.nd.edu/mediawiki/index.php?title=User:E_W_Hitchler&diff=1098 User:E W Hitchler 2011-01-25T04:06:58Z

<p>E W Hitchler: Created page with "Electric Brush The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a r..."</p> <hr /> <div>Electric Brush<br /> <br /> The point of this patent was to improve the electrical brush. They wanted the brush to be capable of operating at high current densities and high speeds with a reduction in the loss of amps as well as low noise. They wanted to reduce the mechanical load. They wanted to incorporate an electrical connection to stationary, moving, and rotating parts. They wanted to have the brush capable of being used with and without lubrication. They wanted to have a new method for multifibers that will reduce friction and allow fibers to individually flex.</div>

E W Hitchler