Feb. 4: Corporate Council SKH

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Relevant Patents

Argument for Obviousness

Graham's second patent was for a plow that was heavily based upon the earlier '798 patent. There are a few differences, but basic functionality remains the same. Even the stated goals of the patent were the same, with a few minor design tweaks that improved usability. The differences between the two patents amounts to the placement of the hinge plate with respect to the shank; this minor difference can be attributed to a recombination of prior art and not a wholly new invention because each part accomplishes the same task as it did previously. Such a combination was rejected in Anderson's-Black Rock, Inc. v. Pavement Salvage Co., and ought to be rejected here for the same reason. In that decision, the court asked "whether the improvement is more than the predictable use of prior art elements according to their established functions." This new patent is simply a predictable use of the prior elements and, under § 103, it ought to be rejected.

Argument for Non-Obviousness

When debating non-obviousness, 3 subjects must be studied:

  • The scope and content of the prior art;
  • The difference between the prior art and the patent in question;
  • The level of ordinary skill in the art.

It can be argued that in the case of '798 these criteria have been satisfied and the patent was non-obvious.

Before '811, there was a clear and well defined need to create a plow that worked well in hard or rocky soil that would allow the plow to travel through, over, or around the stones without damaging the plow or the frame. The '811 patent was an attempt to provide a solution to that need. However, the design of '811 was flawed: the top plate of the hinge would be worn down by the constantly pivoting shank. Therefore, the '811 patent failed just as fully as the prior art to fully satisfy the desired need. The '798 design addressed these flaws and provided a more comprehensive solution to the problem. Although '798's functions similar to '811, it's ability to function more fully and for a longer period provides a different outcome for the end user and is thus different than the prior art.

To address the level of skill required to develop '798, one must conclude that this would be outside the skill of an ordinary mechanic. If one starts with the '811 patent and begins to address its flaws, it is not immediately clear that rearranging the plate and shank would solve the problem. Instead, it might seem plausible that the trouble lay with the shank itself and some structure ought to be added to it in order to protect the oft-stressed hinge and plate. By looking at another patent issued after '811, Glencoe, the direction of prior art can be seen to progress along these lines. The Glencoe patent contains many of the same pieces as '811, yet the hinge plate and shank remain the same. Thus, the differences that make '798 such a unique insight and worthy of patent protection remain. It is unlikely that an ordinary mechanic in the field would have found the solution obvious.