Homework 3: Feb 4 Karch

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The Patent under question is #2627798
Filed: 1951 by Graham

Two other patents will be analyzed as "prior art" in order to determine whether the '798 patent satisfies the non-obviousness requirement as set by Title 35 Sec 103.
2493811 Filed 1947 by Graham
2014451 Filed 1933 by Pfeifer

Argument for the Validity of Patent 2627798

The opposition argues that the '798 patent is obvious as the changes from the '811 patent are small and inconsequential. Although our client Graham admits that the changes from the '811 patent are, in fact, small, we maintain that the changes, though small, have far reaching and important effects that improve the design substantially.

The '811 patent allowed the plow to vibrate and fishtail in a way that created much friction on the hinge plate, resulting in much wear and damage to the mechanism. The reversed position of the shank with the hinge plate provided for a difference in flex that more effectively absorbs the "tremendous forces of the shock of obstructions whereas prior art arrangements failed." Though the improvement did not require extensive changes to the design, Title 35 Sec 103 says: "Patentability shall not be negatived by the manner in which the invention was made." This invention solved a need where others had failed, and whether the change is small or not is immaterial. Though the invention addressed in the '798 patent was a combination of components of previous inventions, the combination and arrangement of these components was not obvious, and so the '798 patent is therefore valid.

Argument for the Invalidity of Patent 2627798

Our client John Deere maintains that they did not violate the '798 patent due to the fact that the '798 patent is invalid via Title 35 sec 103 requiring that an invention be "non-obvious" in order to be patentable. The '798 patent is different from the '811 patent in only two ways:
"(1) the stirrup and the bolted connection of the shank to the hinge plate do not appear in '811; and
(2) the position of the shank is reversed, being placed in patent '811 above the hinge plate, sandwiched between it and the upper plate. The shank is held in place by the spring rod which is hooked against the bottom of the hinge plate passing through a slot in the shank."

These changes from the '811 patent, although providing improvement of the function of the product, are not non-obvious. In order to satisfy verify the non-obviousness of an invention, the following tests may be applied:
Primary tests of non-obviousness
1. Scope and content of prior art
2. Differences between prior art and current claims
3. Level of ordinary skill in the matter
Secondary tests of non-obviousness
1. Commercial success
2. Long existing unresolved needs
3. Failure of other attempts

The change from the prior art ('811) to the current invention ('798) has already been shown to be small, therefore the '798 patent does not satisfy either 1. or 2. As for 3., the invention must be something not obvious to someone with an ordinary level of skill in the field, there is evidence to the contrary. Graham filed the '811 patent just 4 years before filing the '798 patent. This does not show any "long existing unresolved needs", and instead implies the ineffectiveness of the original '811 patent. Anyone with ordinary skill in the field who used the plow described in the '811 patent would notice the problems associated with the friction and wear of the hinge plate. Were these problems deemed problematic enough to require improvement, it is only logical to change the construction of the parts of the invention that cause the problem. In this case, the orientation of the hinge plate and shank in the '811 patent could be seen to be causing the damage from use. The changing of the orientation of these parts does not represent inventiveness or a substantial discovery, but instead represents the logical conclusion from the evidence at hand. Therefore, the '798 patent is invalid.

User: Sam Karch