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Relationship with Novelty

An inventor loses novelty loses novelty of an invention before a patent for the following reasons under Tenant 102 :

"1.by making the invention known or allowing the public to use the invention;

2.having the invention published in a fixed medium (such as in a patent, patent application, or journal article); or

3.if the invention was previously invented in the U.S. by another, who has not abandoned, suppressed, or concealed the invention, or

4.if the invention was described in a patent application filed by another, where the application later issues as a US patent."[1]

Nonobviousness vs. Invention

The tenant 103 in the US constition states "Patentability shall not be negatived by the manner in which the invention was made." This phrase is deals with how the generation of an invention occured. One concept that comes to mind is that an inventor has a moment such as legend has it that Archimedes was ponder on how to prove a how a crown was real gold while in his bath tub, then said "Eureka" once he came up with the idea. Then the inventor immediately acts on this inspiration and thus a invention is born. The phrase above however addresses that this "Eureka" moment may not be the only way one must make an invention. Most inventions occur by years or work and research to combat the problem and eventually a solution results. Nonobviousness seems to imply that the invention must have been hard to come by, where as an intellectual jump was needed for improvement, otherwise the problem could have already been easily solved. What this statute intends to say that there is no difference between the inventions because how they came about-whether it be one day or over ten years. No more credence would be given to an idea over another, which is stated to further clarify that merit is the defining factor in an inventions valid,nonobvious or not, and how it came about cannot hurt the validity.

Secondary Considerations

Secondary considerations are important factors to consider in a patent case, because although these alone cannot legally validate a patent, they can augment an otherwise nonobvious choice should some aspect of the fundemental requirement of tenant 101. As shown mentioned Graham v. John Deere (1966) these secondary considerations include:

1.commercial success of the invention;

2.long-felt but unsolved needs;

3.failure of others to find a solution, etc.

Examples of these can be shown in the case US v. Adams, 383 U.S. 39 (1966), where Adams patent of a wet battery was ruled invalid, but then reversed.

in this case, the secondary considerations helped validate the patent. 1. The government was using the invention currently. 2. The need for a wet battery which doesnt use acid and the metals dont corrode is satisfied by this invention 3. Many have tried and failed for years in attempt to satisfy the need.

Other broader considerations would be if a product or method is now better in some significant effect, faster to make, or cheaper.

Ordinary Skill in the Art

The term ordinary skill in the art refers to a person who is ocnsidered to have normal skills and knowledge in a particular field, and is useful for determining if an invention possesses nonobviousness. That is to say, in a court of law, if the testimony of a football players health were in question, the opinion of a doctor would be deemed the knowledge in the necessary art where as the opinion of the coach would hold no bearing. The ordinary skill in the art would be engineers or people with technical knowledge in the specific field dealing with the patentable item.

One test the courts currently use today is called the "Teaching-Suggestion-Motivation Test" requires a person with the ordinary skill in the art to express their opinion if having knowledge of the prior art would lead one to combine the items in the questioned patent in an obvious manner. This is shown in Winner Int'l Royalty Corp. v. Wang, 11 F.Supp.2d 18, 48 USPQ2d 1139 (D.D.C. June 12, 1998 where Winner International the makers of the superclub anticar theft device claim infringement on the patent by Wang who made the Gorilla Grip antitheft mechanism. This case upheld that with possession of knowledge in the prior art, any suggestion from that prior art to combine items renders an invention obvious.