In re Carlson (901422128)

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Read for 3/21/11

Reading Notes

  • Decided in CAFC in 1992
  • Carlson appeals decision of PTO Board affirming examiners rejection of his patent
    • CAFC affirms
  • Must determine if a previous invention protected in Germany constitutes an invention patented in a foreign country
  • Carlson filed 11/19/84
    • Design of a dial compartment bottle
  • The German thing is a design registration issued by the government
    • Submit a drawing, picture, etc. to secure registration after which a list of registered designs are published
    • List contained in Federal Gazette
  • In this case the Gesch embraced three bottle designs - one pertinent
  • A Revlon article illustrates the bottle cap used by Carlson
    • Demonstrates its existence in prior art
  • Carlson argued the Gesch should not be prior art
    • Examiner disagrees and said it would have been obvious under 103 but 102 is irrelevant because it was less than one year
  • Previous case determined Gesch counted as a bar under 102
    • Rights and privileges need not be coextensive with U.S. law as long as they are substantial and exclusive
  • Court previously refused to find a distinction between 102a and 102d
    • Already settled that a Gesch qualifies under 102d
    • Different situations in a and d do not necessitate different credentials of qualification
  • Carlson argues it only counts if the prior art is disclosed in a readily-accessible fashion
    • Only requirement is that it is "available" to the public
  • Unfortunate that it is such a burden but this burden is imposed by law on the person of ordinary skill in the art
    • Applicant is assumed to know all the prior art
  • Symmetrical image would have been obvious as asymmetry is used only for aesthetic effect

Prior Art

  • 102 helps to determine the use of prior art
    • Potential bar created by a patent in a foreign country gives rise to use of such a foreign patent as a prior art reference
  • Section 172 uses six months as the time bar for design patents
  • 102a is for foreign patents issued by another and 102d is for foreign patents issued by the same inventor
  • In re Cho determined that the prior art must have suggested the overall appearance of the design and not just components in order to be appropriate

Class Notes