Case 25: In re Carlson (1992)

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The CAFC here ruled on whether an invention made in a foreign country constituted prior art and thus rendered a design by Carlson for a dual-compartment bottle obvious in light of prior art. When Carlson sued Revlon and Smiletote for infringement, they presented three pieces of information not available to the patent examiner:

  1. a copyright issued in Germany before Carlson applied for a patent;
  2. a design patent issued to an Italian for a dual-compartment bottle; and
  3. a magazine article which provides a description of the cap used in the design at issue.

The court held that the copyright issued in Germany still counts as a patent under 102 and is included in the body of prior art. Carlson argued that there is a slight distinction between sections (a) and (d) of 102 that would render a German copyright inapplicable as prior art to American patent applications. He also said that the copyright was not fully disclosed since the copyright existed in a foreign country only. The Court ruled that the copyright didn't have to be well-known in order to be available to the public. In addition, the court asserted that a hypothetical person is assumed to know all of the prior art in determining patentability; whether the applicant knows the prior art or not is immaterial. Finally, just because his design was symmetrical where the prior art described assymetrical components does not render his design nonobvious; anybody who designs such things could have seen the potential for symmetry in the prior art.