User:Sean O'Brien
Homework 1 (1/24/11)
Patent 4,697,285: Ballistic Vest
Date Issued: October 6, 1987
This patent describes a ballistic vest as a worn garment designed to protect the wearer from bullets and/or explosive shrapnel. Awarded in 1987 to William Sylvester of Safariland Ballistics, Inc., it is for a vest that is comprised of a front panel that will protect the front end of the user as well as a rear panel. These panels are held by front and rear carriers, respectively, and are connected to the carriers by elastic straps which are rigidly fixed to the edges of the panels. The panels are composed of multiple layers of flexible impact-resistant material, such as Kevlar, that are contained within a flexible jacket. The layers are free-floating across the area of the panel, making the vest light and comfortable to wear. The rigid fixing of only the edges of the layers to the fasteners ensures that they will remain intact after multiple bullet impacts from different angles as tested.
The patent can be found here.
Homework 2 (1/28/11)
The patent for a ballistic vest described above cites two earlier patents, 4,079,464, by Sam Roggin, and 4,483,020 by Anthony G. Dunn.
The earlier patent by Roggin dates to 1978 and is for a "Protective Garment" that incorporates a folded segment of Kevlar sealed together by a thermosetting resin into the front and back plates, which are connected by shoulder straps. This design is similar to Sylvester's 1987 vest patent but there are also many innovations. The newer vest offers greater protection due to new developments in how the ballistic material in each panel is connected layer to layer and held in place, as well as improvements on its connection with the vest. These innovations are novel and provide greater utility in the form of protection. The innovations came about through many prototype designs invented to specifically address the drawbacks of the earlier vest, namely heightened penetration from angled projectiles. This reflects invested development over time, and does not constitute they type of "obvious" innovation or combination necessary to invalidate the patent.
The latter by Dunn from 1984 reflects a development in the protection offered by the vest wherein multiple layers of hard and soft bullet resistant material act together to stop a bullet. This solved a problem with earlier vests in which wearers suffered blunt trauma type injuries from the kinetic energy impacted by a slug hitting the vest. This new innovation provides markedly better protection and is a new combination of materials before unused in ballistic vests, making it a nonobvious progression in vest technology and warranting a new patent. Sylvester's vest is newer still, and beats Dunn's vest in protection offered. It reverts back to a vest composed completely of soft ballistic material, yet does not lack Dunn's energy dispersion. It also adds protection from angled projectiles as mentioned above. This new method of fixating the ballistic material is novel and would not be obvious to someone familiar with bullet proof vests.
Both patents follow shortly after patent 3,829,899, which was awarded in 1974 to Second Chance Body Armor Company as the first bullet resistant article of soft clothing and there are many similarities between the ballistic vest patent of 1987 and the earlier patents. A basic design of a vest that contains two plates of bullet resistant material is common, and also that each has layers of material composing their respective plates. However in each succeeding patent, there is evident that a significant improvement has been made in offering superior protection to the wearer. Sylvester's patent represents the progress of vest technology through research and development likely funded heavily by the Department of Defense.
Homework 3 (2/4/11)
For non-obviousness:
The question at hand is whether William T. Graham's 1953 patent (referred to as '798) fulfilled the non-obviousness requirement of § 103 of the U.S. Code. This patent improved upon an earlier patent ('811) of his for a vibrating farm plow. Looking at the Supreme Court ruling in KSR International Co. v. Teleflex, Inc., the court maintained the standard of proving that new innovations must be beyond someone skilled in the field to satisfy non-obviousness. The innovations in patent '798 involve placing the hinge plate below the shank to keep the outward motion to a minimum. This new alignment is not something that would be obvious to a person having ordinary skill in the art, and thus fulfills the requirement for non-obviousness.
Against non-obviousness:
Graham's second patent was for, in essence, a redesigned plow that alters the alignment of a few elements, but does not offer new functionality. The difference between Graham's '798 patent and the earlier '811 is the placement of the hinge plate with respect to the shank, which can be seen simply as a new combination of prior art, where each part accomplishes the same purpose as it did previously. Such a new combination was rejected as grounds for a new patent in Anderson's-Black Rock, Inc. v. Pavement Salvage Co., and should be rejected here as well. In the prior case, the court stated that when examining the obviousness of an innovation, the court must ask "whether the improvement is more than the predictable use of prior art elements according to their established functions." The new plow design is merely a reorganization of the old design, and does not warrant a new patent.
Homework 4 (2/9/11)
My page on Nonobviousness: Nonobvouisness by Sean
Homework 5 (2/14/11)
Brief of Franklin Pierce Law Center as Amicus Curiae in Support of Petitioners
Homework 6 (2/28/11) - The Nonobvious Requirement
Handbook Summary:
In order to determine the obviousness of a patent, it must be decided if “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains,” according to 35 USC §103. This is the definition of nonobviousness and is the law that establishes it as criteria for patentability. There are a few ways to disqualify a patent from meeting this criteria, including:
1. The invention is obvious to a person of ordinary skill. This means that the new patent cannot be granted for minor improvements that may have been bade to a product if they would have been easily apparent to any knowledgeable person in the field at the time.
2. The invention is a result of a simple change of material. Merely changing the material that is used in a previously known invention does not constitute nonobviousness, even if the new material does provide greater utility or lessens the cost of the product.
3. The invention is a combination of prior art and does not create any new or useful function. While the Supreme Court admits that all invention is based upon previous knowledge, a simple assortment of useful devices into one machine does not make an invention nonobvious, it must be shown that the whole is greater than the sum of the parts.
Also, if there is a longtime need that has gone unsatisfied, then a new invention can be seen as nonobvious and can warrant a patent despite being a substitution of new material or a combination of parts, especially if the result is unexpected. Other Secondary consideration include previous failures in the field and the commercial success of the new product.
Policy Considerations:
The above guidelines are the basis for the rulings administered by the United States Patent Office and are used to determine if an invention is eligible for a patent, and they are also the standard that the Supreme Court uses when ruling on cases of patentability when nonobviousness is in question. The foundation of this policy is rooted in the ideas of Thomas Jefferson and his desire to promote the advancement of new science and technology by granting property rights to inventors. He was exceedingly wary of monopolies however, and sought to make sure that patents were restricted only to such inventions that would advance these goals. This makes it necessary to establish standards of evaluating patent applications, and these are as stated in the Federal U.S. Code; that the obviousness is determined by a skilled person in the same field as the invention. To make this determination in a legal setting, many things must be compared and considered.
The scope of all prior art must be known and compared to the patent in question. It is a fine line to draw between what may or may not have occurred to a skilled mechanic in the field, but other considerations such as the duration between innovations can help clarify this. A good example is the optical coating that was the subject of the Lyons v. Bausch and Lomb case in 1955. The new patent described a simple step but solved a problem that had eluded the most competent workers in the field for ten years, and thus could not be considered obvious. For a new patent to be granted the product in question must also show that it is not merely an improvement made upon an earlier invention. The ruling in Hotchkiss v. Greenwood created this criterion by invalidating a patent for doorknobs that merely swapped material of the doorknob in order to improve the product. Since no new fabrication or production method was required, it was determined that a skillful worker could easily have made this improvement and thus the “invention” was not worthy of a patent. This applies also to combinations of prior arts, as which all inventions inevitably could be described. The invention must accomplish more as a whole than its individual parts; simply joining together previously used technology into one contraption does not constitute invention. As such was the case in A&P Tea v. Supermarket Equiptment and in Anderson Black Rock v. Pavement Salvage, where the “inventions” in question were ruled to be obvious because they only combined previous known elements and did not achieve any new or improved function.
History:
Patent law in the United States originates from the Copyright Clause of the U.S. Constitution. In Article I, Section 8, it is stated that Congress shall have the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This power was codified in 1790 when President Washington signed into law the Patent Act of 1790. This act was modified by Thomas Jefferson three years later to define a patent as “any new and useful art, machine, manufacture or composition of matter and any new and useful improvement on any art, machine, manufacture or composition of matter,” a definition that persists today. However the concept of nonobviousness did not begin to be considered for more than a half century after this. In the U.S. Supreme Court case Hotchkiss v. Greenwood in 1850, the court ruled that mere introduction of new material not previously used in a doorknob was not enough of an alteration to warrant a new patent. The new material did improve the function of the doorknob, but the court ruled that “unless more ingenuity and skill in applying the old method … were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention.” This set a precedent for nonobviousness, even though it was not explicitly defined or codified in law at this point.
In 1950 the Supreme Court decided on a the case A&P Tea v. Supermarket Equipment and further illuminated what it meant for an invention to be obvious. The court rejected the validity of a new patent for a cashier counter that was an aggregation of old and familiar parts. The court stated that while all new inventions clearly relied on previous innovations, they must be combined in a new and useful way so that the whole is greater than the sum of its parts to be patentable. They also specified that the level of inventiveness could be partially determined by the presence of a “long felt but unsatisfied need” and reiterated Thomas Jefferson’s original intent for patents: that they be primarily for the promotion of new science and engineering and less about the protection of the inventor’s moral right to their invention. These opinions went on to influence the Patent Act of 1952, in which the current language of 35 USC §103 prevents a patent from being granted if “the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The issue was also considered in Lyon v. Bausch and Lomb in 1955, when a patent for a non-reflective coating for optical surfaces was upheld in the US Court of Appeals. They judged that even though the new patent introduced was a short step away from previous technology, it satisfied a need that had long existed and had failed to be realized for many years by technicians in the field, thus making in nonobvious.
Later, in a ruling on the case Graham v. John Deere Co. in 1966, the Supreme Court established the interpretation of §103 requires that nonobviousness be determined by examining the scope and content of the prior art, the differences between the claimed invention and the prior art, and the level of ordinary skill in the prior art. These tests could also be influenced by things such as the before mentioned “long felt but unsatisfied need,” the commercial success of an invention, or the previous failures of others. They also ruled in the same year on the case of United States v. Adams that any unexpected result of experimentation with new materials or combinations of prior art can be seen as evidence of nonobviousness. In Anderson's Black Rock v. Pavement Salvage in 1969 the court confirmed this by rejecting the patent because it was seen as a mere aggregation of prior art that, while convenient, did not produce any new of different function and was thus obvious.
Proposal Standard:
It is my opinion that the current standard of nonobviousness accomplishes its goal but is somewhat convoluted in how it does this. There has been evidence in recent years of divergence between the Supreme Court an lower courts in how they measure the obviousness of an invention, despite the admonitions of the former. I believe that the Supreme Court is right in affirming that a simple TSM test is not adequate in determining obviousness, but that an overall analysis must be performed, with the higher goals and intentions of specific standards kept at the forefront of consideration.
