Bill Goodwine's Wiki - User contributions [en]

User:Fernando Rodriguez

2011-05-03T02:36:53Z

Fernando Rodriguez:

==[[HW1 (Fernando Rodriguez) ]]==

==[[Bonito Boats Notes (Fernando Rodriguez)]]==
==[[Hotchkiss v. Greenwood (Fernando Rodriguez)]]==
==[[A. & P. Tea Co. v. Supermarket Corp (Fernando Rodriguez)]]==
==[[Lyon v. Bausch & Lomb (Fernando Rodriguez)]]==
==[[Class Notes 1/26/2011]]==
==[[HW2 (Fernando Rodriguez)]]==
==[[Graham vs John Deere (Fernando Rodriguez)]]==
==[[Adams (Fernando Rodriguez)]]==
==[[Anderson (Fernando Rodriguez)]]==
==[[Class Notes 1/31/2011 (Fernando Rodriguez)]]==
==[[HW3 (Fernando Rodriguez)]]==
==[[Class Notes 2/7/2011 (Fernando Rodriguez)]]==
==[[Hw4 (Fernando Rodriguez)]]==
==[[Class Notres 2/9/2011 (Fernando Rodriguez)]]==
==[[Class Notes 2/11/2011]]==
==[[Class Notes 2/18/2011(Fernando Rodriguez)]]==
==[[Class Notes 2/21/2011 (Fernando Rodriguez)]]==
==[[Class Notes 3/2/2010 (Fernando Rodriguez)]]==
==[[Class Notes 3/9/2011 (Fernando Rodriguez)]]==
==[[HW 5 Fernando Rodriguez ResQNet.com, Inc. v. Lansa, Inc.]]==
==[[HW 6 Fernando Rodriguez]]==
==[[HW 7 Fernando Rodriguez]]==
==[[Class Notes 4/11/2011 (Fernando Rodriguez)]]==
==[[HW8 Fernando Rodriguez]]==

Class Notes 4/11/2011 (Fernando Rodriguez)

2011-04-11T16:28:02Z

Fernando Rodriguez: Created page with "Cateter S Desig Applicatio 1981 Caadia App 1982(proble (102) for tos app S tilit App 1984 *(wated ot beefit fro 1981 filig data District Cort -patet app cat se 1981 fillig d..."

Cateter

S Desig Applicatio
1981

Caadia App
1982(proble (102) for tos app

S tilit App 1984 *(wated ot beefit fro 1981 filig data

District Cort
-patet app cat se 1981 fillig date, Summary judgement

-CAFC tere are isses ad readed it

soeties o ca get awa wit st drawigs

User:Fernando Rodriguez

2011-04-11T15:58:28Z

Fernando Rodriguez:

HW 6 Fernando Rodriguez

2011-04-06T17:31:19Z

Fernando Rodriguez:

Sage Products, Inc. v. Devon Industries, Inc.
126 F.3d 1420
C.A.Fed. (Cal.),1997.

Te lawsuit involved a hazardous disposal container specifically made for syringes. I this case it was found that the patent was not infringed under the patent of equivalents. The judge also made some important clarifications about the use of the doctrine of equivalents. Especially important the fact that the claims should be examined individually in order to establish a equivalent claim in the infringing patent. In this case the Court found that the claim involving the placement of a slot on the container was not equivalent in both products as one was in the middle of the body and the other at the top. This case was helpful understanding the doctrine mostly due to the clarifications made by the court than the example itself.

HW 6 Fernando Rodriguez

2011-04-06T16:12:20Z

Fernando Rodriguez: ivalet i bot prodcts.

Sage Products, Inc. v. Devon Industries, Inc.
126 F.3d 1420
C.A.Fed. (Cal.),1997.

Te lawsit ivolved a azardos disposal cotaier especifiall ade for sriges. I tis case it was fod tat te patet was ot,ifriged der te patet of q[eqivalets. te dge also ade soe iportat calis abot te se of te doctrie of eqivalets. ore iportatl te fact tat te clais sold be exaied idividall i order to stablis a eqivalet clai i te ifrigig patet. i tis case te dge ffod tat te ai clai ivolvig te plavceet of a slot o te cotaier was ot eqivalet i bot prodcts.

HW 7 Fernando Rodriguez

2011-04-06T15:45:45Z

Fernando Rodriguez:

BRIEF

:This brief is in support of Hamilton Sundstrand Corp. in case 523 F.3d 1304 against Honeywell Inc. This requires to first discussing the main issues in the case at hand. The patent in discussion is related to a technology for controlling airflow surge in auxiliary power units. In a previous trial Honeywell had moved for summary judgment using the doctrine of equivalents. However it was ruled that in had committed patent prosecution history estoppel in the amendments it had made of its claims it had in fact surrendered the doctrine of equivalents. This meant that Honeywell could not use the doctrine of equivalents to state its case. Due to the fact that there was no literal infringement by Sundstrand it was determined that Sundstrand did not infringe upon Honeywell’s patents.

:The important part of the case, and that on which the court should concentrate is not on whether there was literal infringement, this has already been examined both by the district court and the federal court and has been found to be non-existent.
The important part of the case which needs to be discussed then is wether or not Honeywell committed prosecution historical estoppel. If this is found to be true then the issue of equivalence under the doctrine of equivalents becomes irrelevant as Honeywell is barred from using the doctrine of equivalents.

:It is the Courts responsibility to make sure that individuals or companies do not try to abuse the system or “loopholes” to expand the scope of their own patents. In this case the que4stion is whether or not the intention to “cheat “ was present in the way in which Honeywell went about obtaining its patent.
:When Honeywell first tried to obtain a patent for this system, it was denied due to it being similar to other existing patents. In order to avoid these rejections the patent was rewritten and its original independent claims were canceled, the claims which are now in question were made into independent claims. This would normally prevent Honeywell from using the doctrine of equivalents to assert infringement. This is the right move, especially when looking at it from a more removed point of view, by observing that the patent was originally denied we can tell that no matter what the wording is the patent will at its very core be somewhat similar to another patent, the system itself has not changed only the wording of it. Furthermore in order to use the doctrine of equivalents, as it has been stated before, the claims must be examined by themselves, hence they have to be equivalent on that level.

:Furthermore by narrowing its claims, Honeywell has conceded that it abandoned its original claims, and that its product was similar enough to others to warrant said reduction. Hence it cannot prosecute Sundstrand using the doctrine of equivalents. By limiting its claims it cannot prosecute under that subject matter which it gave up in order to obtain the patent.

:Honeywell could show that the change in the claims was not surrendering; however it would have to prove that there was no forseeability and that there existed only tangibility. However as it was shown before the patent was already similar enough to have to change its wording hence the equivalents are not unforeseeable. Furthermore the equivalent proposed by Honeywell to change the patent was directly related to the amendment so they cannot claim that there was no prosecution history estoppel.

HW 7 Fernando Rodriguez

2011-04-06T15:45:26Z

Fernando Rodriguez:

BRIEF
:This brief is in support of Hamilton Sundstrand Corp. in case 523 F.3d 1304 against Honeywell Inc. This requires to first discussing the main issues in the case at hand. The patent in discussion is related to a technology for controlling airflow surge in auxiliary power units. In a previous trial Honeywell had moved for summary judgment using the doctrine of equivalents. However it was ruled that in had committed patent prosecution history estoppel in the amendments it had made of its claims it had in fact surrendered the doctrine of equivalents. This meant that Honeywell could not use the doctrine of equivalents to state its case. Due to the fact that there was no literal infringement by Sundstrand it was determined that Sundstrand did not infringe upon Honeywell’s patents.

:The important part of the case, and that on which the court should concentrate is not on whether there was literal infringement, this has already been examined both by the district court and the federal court and has been found to be non-existent.
The important part of the case which needs to be discussed then is wether or not Honeywell committed prosecution historical estoppel. If this is found to be true then the issue of equivalence under the doctrine of equivalents becomes irrelevant as Honeywell is barred from using the doctrine of equivalents.

:It is the Courts responsibility to make sure that individuals or companies do not try to abuse the system or “loopholes” to expand the scope of their own patents. In this case the que4stion is whether or not the intention to “cheat “ was present in the way in which Honeywell went about obtaining its patent.
:When Honeywell first tried to obtain a patent for this system, it was denied due to it being similar to other existing patents. In order to avoid these rejections the patent was rewritten and its original independent claims were canceled, the claims which are now in question were made into independent claims. This would normally prevent Honeywell from using the doctrine of equivalents to assert infringement. This is the right move, especially when looking at it from a more removed point of view, by observing that the patent was originally denied we can tell that no matter what the wording is the patent will at its very core be somewhat similar to another patent, the system itself has not changed only the wording of it. Furthermore in order to use the doctrine of equivalents, as it has been stated before, the claims must be examined by themselves, hence they have to be equivalent on that level.

:Furthermore by narrowing its claims, Honeywell has conceded that it abandoned its original claims, and that its product was similar enough to others to warrant said reduction. Hence it cannot prosecute Sundstrand using the doctrine of equivalents. By limiting its claims it cannot prosecute under that subject matter which it gave up in order to obtain the patent.

:Honeywell could show that the change in the claims was not surrendering; however it would have to prove that there was no forseeability and that there existed only tangibility. However as it was shown before the patent was already similar enough to have to change its wording hence the equivalents are not unforeseeable. Furthermore the equivalent proposed by Honeywell to change the patent was directly related to the amendment so they cannot claim that there was no prosecution history estoppel.

HW 7 Fernando Rodriguez

2011-04-06T15:45:08Z

Fernando Rodriguez:

BRIEF
This brief is in support of Hamilton Sundstrand Corp. in case 523 F.3d 1304 against Honeywell Inc. This requires to first discussing the main issues in the case at hand. The patent in discussion is related to a technology for controlling airflow surge in auxiliary power units. In a previous trial Honeywell had moved for summary judgment using the doctrine of equivalents. However it was ruled that in had committed patent prosecution history estoppel in the amendments it had made of its claims it had in fact surrendered the doctrine of equivalents. This meant that Honeywell could not use the doctrine of equivalents to state its case. Due to the fact that there was no literal infringement by Sundstrand it was determined that Sundstrand did not infringe upon Honeywell’s patents.

:The important part of the case, and that on which the court should concentrate is not on whether there was literal infringement, this has already been examined both by the district court and the federal court and has been found to be non-existent.
The important part of the case which needs to be discussed then is wether or not Honeywell committed prosecution historical estoppel. If this is found to be true then the issue of equivalence under the doctrine of equivalents becomes irrelevant as Honeywell is barred from using the doctrine of equivalents.
:It is the Courts responsibility to make sure that individuals or companies do not try to abuse the system or “loopholes” to expand the scope of their own patents. In this case the que4stion is whether or not the intention to “cheat “ was present in the way in which Honeywell went about obtaining its patent.
:When Honeywell first tried to obtain a patent for this system, it was denied due to it being similar to other existing patents. In order to avoid these rejections the patent was rewritten and its original independent claims were canceled, the claims which are now in question were made into independent claims. This would normally prevent Honeywell from using the doctrine of equivalents to assert infringement. This is the right move, especially when looking at it from a more removed point of view, by observing that the patent was originally denied we can tell that no matter what the wording is the patent will at its very core be somewhat similar to another patent, the system itself has not changed only the wording of it. Furthermore in order to use the doctrine of equivalents, as it has been stated before, the claims must be examined by themselves, hence they have to be equivalent on that level.
:Furthermore by narrowing its claims, Honeywell has conceded that it abandoned its original claims, and that its product was similar enough to others to warrant said reduction. Hence it cannot prosecute Sundstrand using the doctrine of equivalents. By limiting its claims it cannot prosecute under that subject matter which it gave up in order to obtain the patent.

:Honeywell could show that the change in the claims was not surrendering; however it would have to prove that there was no forseeability and that there existed only tangibility. However as it was shown before the patent was already similar enough to have to change its wording hence the equivalents are not unforeseeable. Furthermore the equivalent proposed by Honeywell to change the patent was directly related to the amendment so they cannot claim that there was no prosecution history estoppel.

HW 7 Fernando Rodriguez

2011-04-06T15:44:27Z

Fernando Rodriguez: Created page with "BRIEF This brief is in support of Hamilton Sundstrand Corp. in case 523 F.3d 1304 against Honeywell Inc. This requires to first discussing the main issues in the case at hand. ..."

BRIEF
This brief is in support of Hamilton Sundstrand Corp. in case 523 F.3d 1304 against Honeywell Inc. This requires to first discussing the main issues in the case at hand. The patent in discussion is related to a technology for controlling airflow surge in auxiliary power units. In a previous trial Honeywell had moved for summary judgment using the doctrine of equivalents. However it was ruled that in had committed patent prosecution history estoppel in the amendments it had made of its claims it had in fact surrendered the doctrine of equivalents. This meant that Honeywell could not use the doctrine of equivalents to state its case. Due to the fact that there was no literal infringement by Sundstrand it was determined that Sundstrand did not infringe upon Honeywell’s patents.
The important part of the case, and that on which the court should concentrate is not on whether there was literal infringement, this has already been examined both by the district court and the federal court and has been found to be non-existent.
The important part of the case which needs to be discussed then is wether or not Honeywell committed prosecution historical estoppel. If this is found to be true then the issue of equivalence under the doctrine of equivalents becomes irrelevant as Honeywell is barred from using the doctrine of equivalents.
It is the Courts responsibility to make sure that individuals or companies do not try to abuse the system or “loopholes” to expand the scope of their own patents. In this case the que4stion is whether or not the intention to “cheat “ was present in the way in which Honeywell went about obtaining its patent.
When Honeywell first tried to obtain a patent for this system, it was denied due to it being similar to other existing patents. In order to avoid these rejections the patent was rewritten and its original independent claims were canceled, the claims which are now in question were made into independent claims. This would normally prevent Honeywell from using the doctrine of equivalents to assert infringement. This is the right move, especially when looking at it from a more removed point of view, by observing that the patent was originally denied we can tell that no matter what the wording is the patent will at its very core be somewhat similar to another patent, the system itself has not changed only the wording of it. Furthermore in order to use the doctrine of equivalents, as it has been stated before, the claims must be examined by themselves, hence they have to be equivalent on that level.
Furthermore by narrowing its claims, Honeywell has conceded that it abandoned its original claims, and that its product was similar enough to others to warrant said reduction. Hence it cannot prosecute Sundstrand using the doctrine of equivalents. By limiting its claims it cannot prosecute under that subject matter which it gave up in order to obtain the patent.
Honeywell could show that the change in the claims was not surrendering; however it would have to prove that there was no forseeability and that there existed only tangibility. However as it was shown before the patent was already similar enough to have to change its wording hence the equivalents are not unforeseeable. Furthermore the equivalent proposed by Honeywell to change the patent was directly related to the amendment so they cannot claim that there was no prosecution history estoppel.

User:Fernando Rodriguez

2011-04-06T15:44:13Z

Fernando Rodriguez:

HW 5 Fernando Rodriguez ResQNet.com, Inc. v. Lansa, Inc.

2011-03-23T15:45:32Z

Fernando Rodriguez:

ResQNet.com, Inc. v. Lansa, Inc.
533 F.Supp.2d 397
First Started on District Court and then was sent to the Court of Appeals. This case dealt with ResQNet bringing suit against Lansa for ther product called NewLook infringing one of their patents for screen recognition software for terminal emulation. There were 2 claims of 2 patents whent his was sent to the Court of Appeals, it was found that the Lansa software did infringe one of the patents but not both. It did not infringe the '608 patent claim 1 as it only shared with it the use of a term User ID, not how to detect whether or not a user logged in to a terminal. However it did infringe by utilizing ResQNet claim '075 that claimed an algorythm to detect similar screens by comparing the IDs to previously saved costume made GUIs . Important to notice is that Lansa tried to get the patents invalidate under due to prior public publication in a instruction manual for the Flashpoint software. This details a method of a GUI grabbing screens for emulation and easier access. It was deterined that a user manual is not was not a public publication, as it is not accessible by everyone without buying the software and as a result could constitute prior art.

HW 5 Fernando Rodriguez ResQNet.com, Inc. v. Lansa, Inc.

2011-03-23T14:28:07Z

Fernando Rodriguez: Created page with "ResQNet.com, Inc. v. Lansa, Inc. 533 F.Supp.2d 397 First Started on District Court and then was sent to the Court of Appeals. This case dealt with ResQNet bringing suit against ..."

ResQNet.com, Inc. v. Lansa, Inc.
533 F.Supp.2d 397
First Started on District Court and then was sent to the Court of Appeals. This case dealt with ResQNet bringing suit against Lansa for ther product called NewLook infringing one of their patents for screen recognition software for terminal emulation. There were 2 claims of 2 patents whent his was sent to the Court of Appeals, it was found that the Lanasa software did infringe one of the patents but not both. It did not infringe the ' patent as it only shared with it the use of a term User ID. However it did infringe by utilizing ResQNet claim ' that . Important to notice is that Lansa tried to get the patents invalidate under due to prior public publication in a instuction manual for the Flashpoint software, which details a method of GUI grabbing screens for emulation. However it was deterined that a user manual is not was not a public publication, as it is not accesible by everyone without buying the software and as a result could constitute prior art.

User:Fernando Rodriguez

2011-03-23T14:18:39Z

Fernando Rodriguez:

Class Notes 3/9/2011 (Fernando Rodriguez)

2011-03-09T17:36:59Z

Fernando Rodriguez: Created page with "In addition to patents there are other forms of IP in the United States # Patent-Federal #Copyright-Federal #Trademarks-Federal #Trade Secret- State Law, varies by state ==Trad..."

In addition to patents there are other forms of IP in the United States

# Patent-Federal
#Copyright-Federal
#Trademarks-Federal
#Trade Secret- State Law, varies by state

==Trade Secrets-Federal Law==
Trade secret is a term that is usually understood means a secret formula or process, not patented (it wouldnt be secret no more), known only to certain individuals, who use it, manufacturing some article of trade value. It is rarely if ever used to denote the mere privacy with which an ordinary commercial business is carried on.

What is the use of a trade secret?
it is a property right: protection against unauthorized disclosure and if it is disclosed can recieve monetary compensation

This is the law of torts.

One is liable when he or she uses or discloses a trade secret if
a) he discovered it by improper means
b)the disclosure or use is a breach of confidence
c) he learned of it from a 3rd person with knowledge that it was a secret and the 3rd party was breaching his duty
d) he had notice it was a secret the disclosure was a mistake

==Contrast with patents==
#Trade Secrets do not protect against
## Reverse Engineering
##independent development

# Patents require non-obviousness, which is a fairly high standard. Trade secret depending on the state, may only need to be marginally removed from common knowledge

#No filing requirements

==Copyright==
Title 17 USC
:Covers original works of authorship
:Fixed intangible medium

User:Fernando Rodriguez

2011-03-09T16:49:35Z

Fernando Rodriguez:

ESB Briefs

2011-03-04T05:28:37Z

Fernando Rodriguez:

Here is a list of briefs for the Electric Storage Battery Co v. Shimadzu case. Add your name next to the list for the one with the fewest names and read that one.
* Reply Brief for Respondents. (Feb. 27, 1939)
#Michael Madden
#Hwong1
#croetzel
#kroshak
#Adam Mahood
#Michael Ackroyd
#Sam Karch
#Kyle Tennant
#Steve Bonomo
#
* Reply Brief for Petitioner. (Feb. 7, 1939)
#Cmadiga1
#90144463
#901422128
#jpotter2
#ewolz
#E W Hitchler
#Davin Sakamoto
#Kevin Godshall
#901479977
#
* Brief for Respondents (Jan. 28, 1939)
#LMiller
#Josh Bradley
#Brobins
#Ebingle
#kyergler
#BCastel1
#Eric Leis
#Eddie Guilbeau
#
#
* Brief for Petitioner. (Jan. 1939)
#Kschlax
#Andy Stulc
#Mzahm
#Rabot
#Peter Mitros
#Jacob Marmolejo
#Greg Torrisi
#Kevin Dacey
#Fernando Rodriguez
#

Class Notes 3/2/2010 (Fernando Rodriguez)

2011-03-02T18:13:53Z

Fernando Rodriguez:

:Class Notes
:Remember Blooms taxonomy
:Analysis of previous homework

:Grading
Handbook 10 points
7 points for regurgitating the MPEP or text from KSR
3 point for analysis and synthesis

Policy Outline
10 points for a summary from the recent case that lists any polcy consideration
10 points up to analysis or evualuation

History
15 points for listing the cases and holdings
5 points for tracking

Standard

==Electric Storage Battery==
Timeline

8/1919
Invention Japan
Japan

1/1921-6/1921
Defendant started using

1/30/1922
Application
Defendant tried at first to have this as the date of invention (due to it being in Japan)

7/23
Application2

1926
App3
Appealed

==Interferances==
The board of patent appeals and Interferances, determines questions of interferance, meaning when the date of the invention, etc.

Class Notes 3/2/2010 (Fernando Rodriguez)

2011-03-02T17:06:47Z

Fernando Rodriguez: Created page with ":Class Notes :Remember Blooms taxonomy :Analysis of previous homework :Grading Handbook 10 points 7 points for regurgitating the MPEP or text from KSR 3 point for analysis and s..."

User:Fernando Rodriguez

2011-03-02T16:49:40Z

Fernando Rodriguez:

Class Notes 2/21/2011 (Fernando Rodriguez)

2011-02-21T18:22:20Z

Fernando Rodriguez:

==Elizabeth Case==

:Charges
*Not novel- other previous art (British patents)
*Public use

# Mil-dam road: 1848
# Privately owned tall road for 6 years (test)
# Application was issued 1854 reissued 1867

:Evidence of Experimentation
#Keep records
#No profit
#confidentiality
#Control
#"He was there ever day" observation
#No other way to test
#Time scale needed for testing

:Result: Patent held not in public use
:He was testing to ensure it worked

==Boat Case==
Lough constructed 6 prototypes, 1 for himself, 3 for close friends, 2 friends who owned a marina installed in display boat and that was sold (Laugh didnt know), he won the trial sued Brunswick (CAFC won JMOL(Judgement on matter of law)

:Experiment
:There was a dissent as he thought that he was not a company so more casual experimentation is ok

:Not Experiment
*No documentation
*No progress reports
*Number not justified as experiment
*No secrecy
*Control

Policy
#Public expecction of free use
#Quick disclossure
#Reasonable time to judge value (market testing)
#Can't get the system

Class Notes 2/21/2011 (Fernando Rodriguez)

2011-02-21T17:27:00Z

Fernando Rodriguez: /* Elizabeth Case */

Class Notes 2/21/2011 (Fernando Rodriguez)

2011-02-21T17:05:43Z

Fernando Rodriguez: Created page with "==Elizabeth Case== :Charges *Not novel- other previous art (British patents) *Public use # Mil-dam road: 1848 # Privately owned tall road for 6 years (test) # Application was i..."

User:Fernando Rodriguez

2011-02-21T16:53:43Z

Fernando Rodriguez:

Class Notes 2/18/2011(Fernando Rodriguez)

2011-02-18T17:29:20Z

Fernando Rodriguez:

Important dates whe n filing a patent under 35 USC 102

-----------a-----------b------------------------c--time

:A) Date of invention (could be less than a year)
:B) One year prior to application
:C) File application

==Related to section A==
:If its known or used by people in the US prior to the date of invention then its not patentable, it could also be patented or printed

:If outside the US it has to be printed or patented for it to be not valid

:Applicant has printed or patented before invention then it is invalid

==Related to B==
:Public use or sale in the US, as well as patented or printed

:Foreign it still has to be patented or printed (more strict than the public use)

==EGBERT v. LIPPMAN==

===Public===
*No restrictions
*Number doesn't matter (of invention)
*Number of people doesn't matter
*Small hidden part doesnt matter-----------dissent discussed

===Not Public===
*Restrictions on use
**secrecy
**experiment

==Metallizing Engineering v. Kenyon Bearing & Auto Parts==

Proccess to treat the surface on the metal, sprayed on suface for better conditioning

===Public===
:Things produced by the secret process
:Held: public sale. use off output > 1 year propr to appication is a bar (this is so as to not extend monopoly)

Class Notes 2/18/2011(Fernando Rodriguez)

2011-02-18T17:08:39Z

Fernando Rodriguez: Created page with "Important dates whe n filing a patent under 35 USC 102 -----------a-----------b------------------------c--time :A) Date of invention (could be less than a year) :B) One year pr..."

User:Fernando Rodriguez

2011-02-18T16:48:14Z

Fernando Rodriguez:

User:Fernando Rodriguez

2011-02-18T16:47:50Z

Fernando Rodriguez:

Bilski brief list

2011-02-14T16:44:57Z

Fernando Rodriguez:

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

#Reply Brief for Petitioners (Oct. 26, 2009)
#jpotter2
#Adam T. Letcher
#Craigkrzyskowski
#dcarter2
#ebingle
#Rabot
#Eric Paul
#cnorton
#kschlax
#Jnosal
#Mackroyd
#dsakamot
#eguilbea
#901444263
#shockett
#gallsup
#KyleR
#Andy Stulc
#Brief for Amicus Curiae Mark Landesmann in Support of Affirmance (Oct. 2, 2009)
#Aschlehube
#Kevin Godshall
#sbonomo
#Brief for the Respondent (Sep. 25, 2009)
#Kriester
#Brobins
#Josh Bradley
#Chuck Talley
#E W Hitchler
#Brief of Amicus Curiae American Intellectual Property Law Association in Support of Neither Party (Aug. 6, 2009)
#Andrew McBride
#Mzahm
#Adam Mahood
#Hamburgler
#Brief of F%21ed%21eration Internationale Des Conseils En Propri%21et%21e Industrielle as Amicus Curiae in Support of Neither Party (Aug. 6, 2009)
#Brief of Amicus Curiae Law Professor Kevin Emerson Collins in Support of Neither Party (Aug. 6, 2009)
#Brief of Amicus Curiae Legal OnRamp in Support of Neither Party (Aug. 6, 2009)
#cmadiga1
#Fernando Rodriguez
#Brief Amicus Curiae of The Federal Circuit Bar Association in Support of Neither Party (Aug. 6, 2009)
#Brief of Regulatory Datacorp, Inc, American Express Company, Palm Inc., Rockwell Automation, Inc., and SAP America, Inc. as Amici Curiae in Support of Neither Party (Aug. 6, 2009)
#Brief of Double Rock Corporation, Island Intellectual Property LLC, LIDs Capital LLC, Intrasweep LLC, Access Control Advantage, Inc., Ecomp Consultants, Pipeline Trading Systems LLC, Rearden Capital Corporation, Craig Mowry and PCT Capital LLC as Ami ci Curiae in Support of Petitioners (Aug. 6, 2009)
#901422128
#kdacey
#Brief of Franklin Pierce Law Center as Amicus Curiae in Support of Petitioners (Aug. 6, 2009)
#LMiller
#Brief of TELES AG as Amicus Curiae in Support of Neither Party (Aug. 6, 2009)
#Brief of Amicus Curiae San Diego Intellectual Property Law Association in Support of Neither Party on the Merits (Aug. 6, 2009)
#Andrew Chipouras
#CRoetzel
#Brief of Amicus Curiae AwakenIP, LLC in Support of Petitioners (Aug. 6, 2009)
#Pmitros
#pfleury
#901479977
#Brief for Prometheus Laboratories Inc. as Amicus Curiae in Support of Neither Party (Aug. 5, 2009)
#Brief of Amicus Curiae Intellectual Property Owners Association in Support of Neither Party (Aug. 5, 2009)
#Brief of Amicus Curiae Boston Patent Law Association in Support of Petitioners (Aug. 5, 2009)
#Brief for the Business Software Alliance as Amicus Curiae in Support of Affirmance (Aug. 5, 2009)
#Brief of Amicus Curiae Washington State Patent Law Association in Support of Petitioner (Aug. 5, 2009)
#Bobby Powers
#Brief of Amici Curiae Association Internationale Pour la Protection de la Propriete Intellectuelle and International Association For The Protection Of Intellectual Property (U.S.) in Support of Reversal (Aug. 5, 2009)
#Brief of Amicus Curiae Caris Diagnostics, Inc. in Support of Petitioners (Aug. 5, 2009)
#Brief of the Intellectual Property Law Association of Chicago as Amicus Curiae Supporting Neither Party (Aug. 5, 2009)
#Brief of Monogram Biosciences, Inc. and Genomic Health, Inc. as Amici Curiae in Support of Neither Party (Aug. 5, 2009)
#Brief of Amicus Curiae Raymond C. Meiers in Support of Neither Party (Aug. 5, 2009)
#Xiao Dong
#Brief of Amicus Curiae Conejo Valley Bar Association in Support of Neither Party (Aug. 3, 2009)
#Brief For Petitioners (Jul. 30, 2009)
#Brief of Amicus Curiae Telecommunication Systems, Inc. in Support of Neither Party and for Purely Prospective Application of Any Adoption of the New Legal Test Applied Below (Jul. 24, 2009)
#Brief for the State of Oregon as Amicus Curiae in Support of Neither Party (Jul. 24, 2009)
#ewolz
#kristen kemnetz
#John Gallagher
#Sam Karch
#Brief of Amicus Curiae Boston Patent Law Association in Support of Petitioners (Mar. 2, 2009)
#Kyle Tennant
#Brief Amicus Curiae of Franklin Pierce Law Center in Support of Certiorari (Mar. 2, 2009)
#Brief of Amica Curiae Anne E. Barschall, Pro Se in Support of Petitioners (Mar. 2, 2009)
#bcastel1
#Jmarmole
#Gtorrisi

Class Notes 2/11/2011

2011-02-11T17:33:31Z

Fernando Rodriguez: Created page with "Question of law has a 50 50 threshold as in it can be decidaded wheter its right or wrong. :In this case they thought that they could patent everything under the sun : But..."

Question of law has a 50 50 threshold as in it can be decidaded wheter its right or wrong.

:In this case they thought that they could patent everything under the sun
: But not really as stated in last classes notes

:Mathematical algorythm, then can be pattentable only if its scope is narrow, (as in applied only to rubber curation or decoding EKG readings)

:Confusing writing

:Next case:

:Mutual Funds-Managed by the company Signatre

User:Fernando Rodriguez

2011-02-11T17:03:12Z

Fernando Rodriguez:

Hw4 (Fernando Rodriguez)

2011-02-11T16:18:30Z

Fernando Rodriguez:

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

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

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

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

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

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

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

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

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

So to sumarize it all then the inventiness cannot be obtained thorugh the mere swapping of one material for another, without modifiying the purpose of the object,
for example a chair made out of wood and a chair made out of metal.

===A&P Tea v. Supermarket Equipment (1950)===
This case dealt with discussing the validity of a patent for a cashiers drawer, where the arrangement made it easier for the cashier to grab the merchandise. The court used it to exemplify how they did not want any more patents that were stupid. The Supreme Court used it to decide and instruct on what classifies as patentable manner.

:The extension of the drawer then is not enough of change or improvement upon the previous art to warrant the protection a patent would warrant them.
* Furhtermore the extension of the drawer was not at any point being shown as a claim as the patent
: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.
*First the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.
*Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.
*Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.
Another important that it differentiates when a combination is allowed to obtain a patent and when its not (due to being an aggregation) mostly because it lacks "inventiveness".
It also establishes that in order for a combination to warrant a patent, the combination of the elements must produce a new purpose than that which was previously made
An from then on much effort is made to establish what this new term means.

===35 USC 103 (1952)===
This section of the code was adopted in 1952 and prohibits a patent in a case where
:the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.

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

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

* This case dealt with the process of coating optical lenses
* There was a precedent of a similar process (of heating) however he abandoned this process as he did not thing it brought about any benefits
**The defendant then however perfected it and made it become an industry standard.
It serves to relax the previous rulings of Hotchkiss. This then becomes a new standard defining that nonobviousnes means that the improvement should not be obvious to a worker on a field of average skill.

===Graham v. John Deere (1966)===
This case deals with the non obviousness of a system to help plows absove the impact of hitting rocks. It was discovered that the only difference between the mechanism proposed and the prior art was in the way in which a clamp was attached. The combination of these elements and the small changes to the prior art did not qualify as it was certainly obvious to the average worker at the time.

: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 non obviousness include
* scope and content of the prior art;
* differences between the prior art and the claims at issue;
* level of ordinary skill in the pertinent art; and,
* secondary considerations, including:
** commercial success of the invention;
** long-felt but unsolved needs;
** failure of others to find a solution, etc.

Also important to note that US 103 does not discriminate on the way on which the mechanism was conceived.

===U.S. v. Adams (1966)===
Patent discussing the issue of the government infringing on a patent for a wet battery. The wet battery used a completely different set electrodes. The prior art had nothing similar to it, and when government officials looked at them, they decided that there was nothing to win from it and disregarded it, only to return to if later founding useful applications.
This exemplifies the requirement of non obviousness that the combination and improvement should not be apparent to average-skill workers.
* 1966: [[US v. Adams, 383 U.S. 39 (1966)]] All the evidence must be considered. Even small changes can have large consequences, which is relevant to a determination of nonobviousness.

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

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

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

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

==The Inventive Step==
:One of the dangers that proposed by the nonobvious consideration introduces then it athat of making the assumption that in order for something to qualify as pattentable it must have come from some sort of flash of brilliance or from years of work.
:It is important to show that a mechanism is patentable regardless of the method thorugh which invented, this step in the process could be anything and not necessarily be dependent on the intelligence of the creator or a flash o brilliance.
==Relationship with Novelty==
:A patent always requires that there is novelty involved in the development of the artifact to be patented. However novelty does not guarantee that the requirement of non-obviousness will be fulfilled. in A & P as well as in Hotchkiss it is a truth that the objects presented where novel in the fact that they wehre different from the prior act even in a small degree, however it is noted in these cases that they do not satisfy the non-obvious requirement. Basically:
Novelty is necessary, but not the defining factor in obtaining a patent.

Novelty is addressed in 102, and non-obviousness in 103. They are 2 different requirements than need to be fulfilled to warrant the protection obtained from a patent.

==Nonobviousness vs. Invention==
:Non-obviousness and Invention can be considered to a certain degree to signify a similar. Inventiveness was the term used to specify that the object of the pattent should be different from those made previously in a distinct manner, not a simple swap of materials for example what happened in Hotchkiss. After 1952 however this term is changed into non-obviousness as the term inventiveness is deemed to be confusing and the court was seeking to clarify the meaning of this requirement. They also seeked to clarify the requirements necessary to be non-obvious stating that it should not be foun din previous art, and the improvement should be that that which requires that at the given time it was not obvious to a person of average skill in the field.
==Secondary Considerations==
:This has to deal with how sometimes an invention can be shown to be nonobvious and patentable due to the application and impact that it has on the filed. A perfect example of this is shown in Adams as well as Lyon, where the time and application of their inventions that showed that they were in fact fullfilling the non-obviousness requirement.
==Ordinary Skill in the Art==
[[Reiner v. I. Leon Co. (full text)]]

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

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

[[South Corp. v. US]]

===Summary====
All the information previously shown serves to provide a complete picture of the evolution as well as the meaning of the non-obviousness requirment outlined in US 103.
*Starting with Hotchkiss we are introduced to the possibility of something being novel and yet still no awarded patent status due to the substitution not requiring much skill and to a certain degree being obvious to people in the trade.
*A&P furhter expands unto the considerations for patents requirning that if a combination of previously known objects/process is used then the combination should produce something new and diferent should be obtained from it.
*US 103 1952 introduces the term non-obviousness requirement stating that the patent should have not been obvious at the time to a person in the field with ordinary skill, furthermore it states that there is no consideration for how the invention was attained, ie divine inspiration or flash of brilliance do not have any role to play in the decision
*Lyon's serve as an example of how the new law should be applied, furthermore it serves to show the perfect ideal of non-obviousness by demonstrating that even some of the more skilled workers on the field where not capable of devicing the object of the patent. Furthermore it serves to present how the patent can be further expanded as it shows that it became the ruling process in the field, this is established as a secondary consideration.
*In Graham and John Deere there is a move away from trying to establish inventiveness in US103 and further emphasis is put on the previously discussed non-obviousness test.
*Adams showed that there are other considerations to be made when ruling on cases of non-obviousness as the patent in question made a small change that had an important impact

Hw4 (Fernando Rodriguez)

2011-02-11T16:02:26Z

Fernando Rodriguez:

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

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

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

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

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

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

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

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

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

So to sumarize it all then the inventiness cannot be obtained thorugh the mere swapping of one material for another, without modifiying the purpose of the object,
for example a chair made out of wood and a chair made out of metal.

===A&P Tea v. Supermarket Equipment (1950)===
This case dealt with discussing the validity of a patent for a cashiers drawer, where the arrangement made it easier for the cashier to grab the merchandise. The court used it to exemplify how they did not want any more patents that were stupid. The Supreme Court used it to decide and instruct on what classifies as patentable manner.

:The extension of the drawer then is not enough of change or improvement upon the previous art to warrant the protection a patent would warrant them.
* Furhtermore the extension of the drawer was not at any point being shown as a claim as the patent
: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.
*First the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.
*Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.
*Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.
Another important that it differentiates when a combination is allowed to obtain a patent and when its not (due to being an aggregation) mostly because it lacks "inventiveness".
It also establishes that in order for a combination to warrant a patent, the combination of the elements must produce a new purpose than that which was previously made
An from then on much effort is made to establish what this new term means.

===35 USC 103 (1952)===
This section of the code was adopted in 1952 and prohibits a patent in a case where
:the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.

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

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

* This case dealt with the process of coating optical lenses
* There was a precedent of a similar process (of heating) however he abandoned this process as he did not thing it brought about any benefits
**The defendant then however perfected it and made it become an industry standard.
It serves to relax the previous rulings of Hotchkiss. This then becomes a new standard defining that nonobviousnes means that the improvement should not be obvious to a worker on a field of average skill.

===Graham v. John Deere (1966)===
This case deals with the non obviousness of a system to help plows absove the impact of hitting rocks. It was discovered that the only difference between the mechanism proposed and the prior art was in the way in which a clamp was attached. The combination of these elements and the small changes to the prior art did not qualify as it was certainly obvious to the average worker at the time.

: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 non obviousness include
* scope and content of the prior art;
* differences between the prior art and the claims at issue;
* level of ordinary skill in the pertinent art; and,
* secondary considerations, including:
** commercial success of the invention;
** long-felt but unsolved needs;
** failure of others to find a solution, etc.

Also important to note that US 103 does not discriminate on the way on which the mechanism was conceived.

===U.S. v. Adams (1966)===
Patent discussing the issue of the government infringing on a patent for a wet battery. The wet battery used a completely different set electrodes. The prior art had nothing similar to it, and when government officials looked at them, they decided that there was nothing to win from it and disregarded it, only to return to if later founding useful applications.
This exemplifies the requirement of non obviousness that the combination and improvement should not be apparent to average-skill workers.
* 1966: [[US v. Adams, 383 U.S. 39 (1966)]] All the evidence must be considered. Even small changes can have large consequences, which is relevant to a determination of nonobviousness.

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

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

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

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

==The Inventive Step==
:One of the dangers that proposed by the nonobvious consideration introduces then it athat of making the assumption that in order for something to qualify as pattentable it must have come from some sort of flash of brilliance or from years of work.
:It is important to show that a mechanism is patentable regardless of the method thorugh which invented, this step in the process could be anything and not necessarily be dependent on the intelligence of the creator or a flash o brilliance.
==Relationship with Novelty==
:A patent always requires that there is novelty involved in the developement of the artifact to be patented. However novelty does not guarantee that the requirement of non-obviousness will be fullfilled. in A & P as well as in Hotchkiss it is a truth that the objects presented where novel in the fact that they wehre different from the prior act even in a small degree, however it is noted in these cases that they do not satisfy the non-obious requirement. Basically:
Novelty is necessary, but not the defining factor in obtaining a patent.

==Nonobviousness vs. Invention==
:Non-obviousness and Invention can be considered to a certain degree to signify a similar. Inventiveness was the term used to specify that the object of the pattent should be different from those made previously in a distinct manner, not a simple swap of materials for example what happened in Hotchkiss. After 1952 however this term is changed into non-obviousness as the term inventiveness is deemed to be confusing and the court was seeking to clarify the meaning of this requirement. They also seeked to clarify the requirements necessary to be non-obvious stating that it should not be foun din previous art, and the improvement should be that that which requires that at the given time it was not obvious to a person of average skill in the field.
==Secondary Considerations==
:This has to deal with how sometimes an invention can be shown to be nonobvious and patentable due to the application and impact that it has on the filed. A perfect example of this is shown in Adams as well as Lyon, where the time and application of their inventions that showed that they were in fact fullfilling the non-obviousness requirement.
==Ordinary Skill in the Art==
[[Reiner v. I. Leon Co. (full text)]]

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

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

[[South Corp. v. US]]

Hw4 (Fernando Rodriguez)

2011-02-11T04:51:37Z

Fernando Rodriguez:

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

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

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

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

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

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

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

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

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

So to sumarize it all then the inventiness cannot be obtained thorugh the mere swapping of one material for another, without modifiying the purpose of the object,
for example a chair made out of wood and a chair made out of metal.

===A&P Tea v. Supermarket Equipment (1950)===
This case dealt with discussing the validity of a patent for a cashiers drawer, where the arrangement made it easier for the cashier to grab the merchandise. The court used it to exemplify how they did not want any more patents that were stupid. The Supreme Court used it to decide and instruct on what classifies as patentable manner.

:The extension of the drawer then is not enough of change or improvement upon the previous art to warrant the protection a patent would warrant them.
* Furhtermore the extension of the drawer was not at any point being shown as a claim as the patent
: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.
*First the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.
*Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.
*Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.
Another important that it differentiates when a combination is allowed to obtain a patent and when its not (due to being an aggregation) mostly because it lacks "inventiveness".
It also establishes that in order for a combination to warrant a patent, the combination of the elements must produce a new purpose than that which was previously made
An from then on much effort is made to establish what this new term means.

===35 USC 103 (1952)===
This section of the code was adopted in 1952 and prohibits a patent in a case where
:the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.

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

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

* This case dealt with the process of coating optical lenses
* There was a precedent of a similar process (of heating) however he abandoned this process as he did not thing it brought about any benefits
**The defendant then however perfected it and made it become an industry standard.
It serves to relax the previous rulings of Hotchkiss. This then becomes a new standard defining that nonobviousnes means that the improvement should not be obvious to a worker on a field of average skill.

===Graham v. John Deere (1966)===
This case deals with the non obviousness of a system to help plows absove the impact of hitting rocks. It was discovered that the only difference between the mechanism proposed and the prior art was in the way in which a clamp was attached. The combination of these elements and the small changes to the prior art did not qualify as it was certainly obvious to the average worker at the time.

: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 non obviousness include
* scope and content of the prior art;
* differences between the prior art and the claims at issue;
* level of ordinary skill in the pertinent art; and,
* secondary considerations, including:
** commercial success of the invention;
** long-felt but unsolved needs;
** failure of others to find a solution, etc.

Also important to note that US 103 does not discriminate on the way on which the mechanism was conceived.

===U.S. v. Adams (1966)===
Patent discussing the issue of the government infringing on a patent for a wet battery. The wet battery used a completely different set electrodes. The prior art had nothing similar to it, and when government officials looked at them, they decided that there was nothing to win from it and disregarded it, only to return to if later founding useful applications.
This exemplifies the requirement of non obviousness that the combination and improvement should not be apparent to average-skill workers.
* 1966: [[US v. Adams, 383 U.S. 39 (1966)]] All the evidence must be considered. Even small changes can have large consequences, which is relevant to a determination of nonobviousness.

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

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

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

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

==The Inventive Step==
:One of the dangers that proposed by the nonobvious consideration introduces then it athat of making the assumption that in order for something to qualify as pattentable it must have come from some sort of flash of brilliance or from years of work.
:It is important to show that a mechanism is patentable regardless of the method thorugh which invented, this step in the process could be anything and not necessarily be dependent on the intelligence of the creator or a flash o brilliance.
==Relationship with Novelty==
==Nonobviousness vs. Invention==
:Non-obviousness and Invention can be considered to a certain degree to signify a similar
==Secondary Considerations==
:This has to deal with how sometimes an invention can be shown to be nonobvious and patentable due to the application and impact that it has on the filed. A perfect example of this is shown in Adams as well as Lyon, where the time and application of their inventions that showed that they were in fact fullfilling the non-obviousness requirement.
==Ordinary Skill in the Art==
[[Reiner v. I. Leon Co. (full text)]]

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

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

[[South Corp. v. US]]

Hw4 (Fernando Rodriguez)

2011-02-11T04:34:24Z

Fernando Rodriguez:

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

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

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

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

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

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

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

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

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

So to sumarize it all then the inventiness cannot be obtained thorugh the mere swapping of one material for another, without modifiying the purpose of the object,
for example a chair made out of wood and a chair made out of metal.

===A&P Tea v. Supermarket Equipment (1950)===
This case dealt with discussing the validity of a patent for a cashiers drawer, where the arrangement made it easier for the cashier to grab the merchandise. The court used it to exemplify how they did not want any more patents that were stupid. The Supreme Court used it to decide and instruct on what classifies as patentable manner.

:The extension of the drawer then is not enough of change or improvement upon the previous art to warrant the protection a patent would warrant them.
* Furhtermore the extension of the drawer was not at any point being shown as a claim as the patent
: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.
*First the "level of invention" was partly evidenced by "long felt but unsatisfied need" which is a standard used today for nonobviousness.
*Second, it expressed a bias toward patent protection at the frontier of science or engineering, but not for more mundane things like plows, etc.
*Third, it dealt with the issue of the fact that any invention is basically a combination of old elements.
Another important that it differentiates when a combination is allowed to obtain a patent and when its not (due to being an aggregation) mostly because it lacks "inventiveness".
It also establishes that in order for a combination to warrant a patent, the combination of the elements must produce a new purpose than that which was previously made
An from then on much effort is made to establish what this new term means.

===35 USC 103 (1952)===
This section of the code was adopted in 1952 and prohibits a patent in a case where
:the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.

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

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

* This case dealt with the process of coating optical lenses
* There was a precedent of a similar process (of heating) however he abandoned this process as he did not thing it brought about any benefits
**The defendant then however perfected it and made it become an industry standard.
It serves to relax the previous rulings of Hotchkiss. This then becomes a new standard defining that nonobviousnes means that the improvement should not be obvious to a worker on a field of average skill.

===Graham v. John Deere (1966)===
This case deals with the non obviousness of a system to help plows absove the impact of hitting rocks. It was discovered that the only difference between the mechanism proposed and the prior art was in the way in which a clamp was attached. The combination of these elements and the small changes to the prior art did not qualify as it was certainly obvious to the average worker at the time.

: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 non obviousness include
* scope and content of the prior art;
* differences between the prior art and the claims at issue;
* level of ordinary skill in the pertinent art; and,
* secondary considerations, including:
** commercial success of the invention;
** long-felt but unsolved needs;
** failure of others to find a solution, etc.

Also important to note that US 103 does not discriminate on the way on which the mechanism was conceived.

===U.S. v. Adams (1966)===
Patent discussing the issue of the government infringing on a patent for a wet battery. The wet battery used a completely different set electrodes. The prior art had nothing similar to it, and when government officials looked at them, they decided that there was nothing to win from it and disregarded it, only to return to if later founding useful applications.
This exemplifies the requirement of non obviousness that the combination and improvement should not be apparent to average-skill workers.
* 1966: [[US v. Adams, 383 U.S. 39 (1966)]] All the evidence must be considered. Even small changes can have large consequences, which is relevant to a determination of nonobviousness.

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

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

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

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

==The Inventive Step==

==Relationship with Novelty==
==Nonobviousness vs. Invention==
==Secondary Considerations==
==Ordinary Skill in the Art==

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

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

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

[[South Corp. v. US]]

Hw4 (Fernando Rodriguez)

2011-02-11T04:18:57Z

Fernando Rodriguez: /* Graham v. John Deere (1966) */

Hw4 (Fernando Rodriguez)

2011-02-11T04:08:40Z

Fernando Rodriguez: /* Lyon v. Bausch & Lomb (1955) */

Hw4 (Fernando Rodriguez)

2011-02-11T03:18:17Z

Fernando Rodriguez:

Hw4 (Fernando Rodriguez)

2011-02-11T03:18:00Z

Fernando Rodriguez:

Hw4 (Fernando Rodriguez)

2011-02-11T03:17:29Z

Fernando Rodriguez:

Class Notres 2/9/2011 (Fernando Rodriguez)

2011-02-09T17:37:15Z

Fernando Rodriguez:

Diamond v. Diehr
* Basically deals with what constitutes statutory subject matter

'''Agreement'''
Developed a new process for uncured rubber, that included a temperature measurement, it was qualified as a process
The patent won, as in not really know if it was issued but it was agreed that it was a process and patentable

Second to last parragraph before II
You can appeal withing the patent office to the give above the examiner.

They were making a physical alteration to the rubber so that was good, important (usually Court Likes this)

Dissent
*Agree that you can get a patent on a computer program if they are part of something (a transformative process)
*However they do not think this case could be patentable
**They decoupled the problem and realized that the only change that was insituted was the computer program to an otherwise known program

They liked the mental step process but you could not patent this as it is a mental process, used as a basis ffor their dissent (basically if you cant patent a mental processs you cant patent a computer program, which is just an expression of these mental process)

Kinda confusing because you cannot really decouple the claims in that manner

Important question is raised

Can algorithms be patented ?

Class Notres 2/9/2011 (Fernando Rodriguez)

2011-02-09T17:26:18Z

Fernando Rodriguez:

Class Notres 2/9/2011 (Fernando Rodriguez)

2011-02-09T16:54:05Z

Fernando Rodriguez: Created page with "Diamond v. Diehr * Basically deals with what constitutes statutory subject matter '''Agreement''' Developed a new process for uncured rubber, that included a temperature measure..."

User:Fernando Rodriguez

2011-02-09T16:46:29Z

Fernando Rodriguez:

Hw4 (Fernando Rodriguez)

2011-02-08T22:36:09Z

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

User:Fernando Rodriguez

2011-02-08T22:36:00Z

Fernando Rodriguez:

Class Notes 2/7/2011 (Fernando Rodriguez)

2011-02-07T17:35:54Z

Fernando Rodriguez:

Not in 101
-scientific truth
-math expression
-idea (reduction to pracice )
-phenomena of nature (even newly discovered)

In 101
-structure created with knowledge
-application of the law
-process resulting in changes in material transformation

Class Notes 2/7/2011 (Fernando Rodriguez)

2011-02-07T17:26:43Z

Fernando Rodriguez:

Not in 101
-scientific truth \n
-math expression
-idea (reduction to pracice )
-phenomena of nature (even newly discovered)

In 101
-structure created with knowledge
-application of the law
-process resulting in changes in material transformation

Class Notes 2/7/2011 (Fernando Rodriguez)

2011-02-07T17:26:30Z

Fernando Rodriguez: Created page with "Not in 101 -scientific truth -math expression -idea (reduction to pracice ) -phenomena of nature (even newly discovered) In 101 -structure created with knowledge -application o..."

User:Fernando Rodriguez

2011-02-07T16:50:37Z

Fernando Rodriguez:

HW3 (Fernando Rodriguez)

2011-02-04T16:22:51Z

Fernando Rodriguez: /* Patent Valid */

==HW3 Graham v John Deere==
The purpose of this document is to examine the obviousness or non obviousness for a patent granted to William T. Graham for a clamp to be used on virating shank plows. In this document the case and patent will be examined from two different view points, one of an employee of Mr. Graham seeking to show that the patent should be held valid as the manner in which it was attached was not obvious therefore fulfilling that requirement of US 103. The other side of this argument will be taken by an employee of John Deere seeking to show that the patent was invalid as it in fact did not fulfill the requirement of non obviousness. In order to assert the validity of the patent, then it is necessary to determine if this was actuallly an invention worthy of patent protection. The manner in which this will be done will be by undertaking an engineering study of the complexity of the mechanism itself, and by examining the patents stated as references stated as the prior art. This patents are a patent filed by mister Graham himself (now know as the '811 patent) and a fastening device made by Pfiefer (now referred as the Pfiefer patent) .
===Background===
In order to understand whether or not this was in fact an new product that required a degree of technical knowledge greater than that of a regular engineer. The mechanism in question is basically a way in which the shock of a plow hitting a rock or hard surface. The spring attached absorbs the impact force. This had been done before in Graham's previous patent. The invention then lies in the way the plow is attached, in this case its through the use of a hinge that allows the plow to pivot upward instead of downward.
===Patent Invalid===
It is true that at the time this patent was issued there where not any mechanisms that where attached in the same manner as the mechanism in question. However this is not enough to warrant the patent valid. The reasoning for this being that the inclusion of the pivot on the clamp is a natural progression in which the technology would have developed. Furthermore it is fairly obvious that in order to have more space for the flexing motion. The way in which the plow was made before the tendency of the motion. The normal progression of the art and something any engineer with average capacity would be to deflect the motion upward to gain more space for the motion, and the way in which this would be accomplished would be by inserting a rotating attachment to alter the direction.

Therefore any engineer would follow a similar path to this one:

*Utilize the plow
*Observe the tendency to deflect downward and away from the base plate
*Determine the necesity to modify the motion of the mechanism
**Hence the adition of a rotary joint is necessary
*Determine what mechansim to use to alter the motion, in this case a hinge, which is well known to engineers, mechanics and people with diverse backgrounds

Hence a hinge would be one of the first ideas that an engineer would have to alter the direction of the plow. Therefore the patent is not valid under the concept of non obviousness outline by US 103. Furthermore there is certainly not enough distinction from Graham’s previous patent, nor is there anything new in the way it is attached to the structure as it is a certainly similar to Pfeifer patent. As an engineer of average knowledge in the area then, it is my opinion that I could have certainly thought of, and instituted the mechanism in question.

===Patent Valid===
It is certainly obvious that the addition of a hinge is extremely beneficial to the plow as it allows for better flexing of the mechanism, further improving and protecting the plow from being damaged. The addition of the hinge then in my opinion is a great improvement on the device. Furthermore it took a couple years for the patent in question to be filed after Mr. Grahams initial patent, space during which a patent of a similar mechanism with a hinge was not filed. While it is true that using a hinge would be something that a person of average knowledge and experience would have thought of, the exact way in which the hinge was instituted in the design is not. The prior art does not reveal anything similar to this, hence it was through experimentation and study that the arrangement, orientation and location of the hinge and the shank were developed. A person with average knowledge would not be able to come up with the arrangement itself that will provide a superior product, capable of handling more impact and making the plow last longer. Hence it is my opinion that the patent should be held valid as it does fulfill the requirement of non obviousness. Furthermore the way in which it is attached required taking the attaching mechanism outlined by Pfiefer and obtaining a new result from it, that meaning that the fastening device was used to hold corrugated sheet metal in place, and in this device it is used to further expand the movement range of the plow.