Homework 3: Non-obviousness Arguments

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Patents read: Graham's '811 patent and Pfiefer Patent. The "Glencoe clamp" patent could not be found.

Clearly, the main contention here is in relation to the hinge and related parts of the shank mounting structure, rather than the other elements of the device, seeing especially as this is the most profound difference between Graham's '811 and '798 patents. The Pfiefer patent has no bearing on this aspect of the device, and thus its relation within the patented inventions is not called into question. Let us then turn to the difference between the '811 and '798 patents. Graham's '798 patent states, "I have provided a plow structure wherein the shanks of the ground working tools are attached to the plow frame in a manner to permit the desired rocking action of the plow shanks in a simple and efficient manner and without producing destructive strains on the plow frame or excessive wear on the mounting parts." Thus we see that the removal of "destructive strains on the plow frame" and "wear on the mounting parts" are emphasized as the inventive aspects of the '798 patent, achieved mainly by changing the location of the hinge plate to being above the shank, rather than below, and adding a stirrup to further secure the shank to the hinge plate. In moving this hinge plate, wear is most especially reduced between the shank and the heel of the upper plate.

Argument in Favor of Patent

It must be noted first, that the date of the '798 patent application is Aug. 27th, 1951, while that of the '811 application is Feb. 26, 1947--there exists a period of over four years between the two patent applications. If the changes made between these two patents were "obvious at the time the invention was made to a person having ordinary skill in the art," let alone to the inventor himself, who is even more intimately familiar with the device, there would be very little explanation for this relatively vast length of time. Furthermore, there were (presumably) no other patents incorporating these changes submitted to the patent office during this lapse between Mr. Graham's patent applications. In addition to this, the purpose of securing patents is ultimately "to promote the progress of science and useful arts" as stated by the US Constitution. (Article I, Section 8) The discovery of a method in which to reduce wear in a device certainly serves as a means to this end by the fact that it presents a worthy improvement upon the device in question. In many situations, wear is not immediately apparent. Given time and effort in the study of the device and its particular wear development, the key areas that present significant risk of failure can be detected. Only once these areas are detected can true improvements be made to correct the reliability and durability of the device. Hence, these seemingly simple changes were no doubt the result of significant time and effort on the part of Mr. Graham, at least in the consideration of the improvement if not in actual experimentation with it, the fact of which strongly supports the non-obviousness of the '798 patent modifications.

Argument Against Patent

For someone with "ordinary skill in the art," the likelihood of wear occurring most prominently at the point between the heel of the upper plate and the shank would have been obvious. That point serves as a stress concentration on the shank, which any individual in the profession would no doubt have been familiar with in practice, if not in name. Thus, the removal of such a concentration between the '811 and '798 patents does not qualify as sufficient evidence for non-obviousness. It is merely a design modification made out of common sense, rather than careful study and/or brilliant insight that would suggest its validity as "inventive."