User:Cbernhar/homework2.html
Homework 2: Non-Obviousness, with Regards to 3 Cases
The Citations
There are 4 citations in my patent:
[http://www.google.com/patents/about?id=Ty5AAAAAEBAJ "Patent 834399: Apparatus for cleaning hulls of ships"
[http://www.google.com/patents/about?id=rN1oAAAAEBAJ "Patent 3010420: Buoyant boat bottom brush"
[http://www.google.com/patents/about?id=hdouAAAAEBAJ "Patent 4407213: Cleaning implement for boats"
[http://www.google.com/patents/about?id=nwI4AAAAEBAJ "Patent 4648344:Boat hull cleaning device"
Three of the citations are patents held by other people, while the fourth citation is actually held by the same man who holds my chosen patent, and was only issued a year prior to my chosen patent.
The first citation is an older patent, issued in 1906, and describes a system of wires which go underneath the boat while it is in the water, to which a brush is attached on either side. They have inflatable areas, allowing them to be filled so that they are buoyant, and therefore rest against the boat hull while underwater. By moving the cables, one brush moves up the boat hull, while the other moves down, and reversing the motion reverses the directions, allowing for a scrubbing motion. The brushes are not large, so a significant movement up and down is necessary to reach the entire depth of the hull.
The second citation is a patent issued in 1961, and describes a brush, made of buoyant materials, with a long adjustable handle. The brush's buoyancy allows it to float upward and contact the hull, and the handle has two points of articulation so that it may bend and allow the user to stand closely next to the boat. The backside of the brush also has a squeegee on it, for scraping purposes. This brush is also not very large, once again requiring a significant up and down movement to cover the entire depth of the boat hull. It also includes a modification in which an elastic, inflatable member is added to the brush, to provide further buoyancy.
The third citation is a patent issued in 1983, and describes a brush and squeegee type apparatus attached to a long adjustable handle. This device, unlike the previous devices, is made up of a hollow stock, which allows certain portions of the cleaning implement (such as extra bristles or squeegee material) to be stored inside of the device when not in use. It is also used to adjust the buoyancy of the device by changing the level of water inside of the stock when one goes to clean the boat, allowing one to adjust the level for better efficiency when cleaning the hull. The handle is designed to bend at one point to allow the brush to float up and lie against the hull of the boat, and has second point of articulation where it is telescoping, allowing the length of the handle to change, in situations where a different length is needed to reach different parts of the boat. The brush is once again not very large, and requires the same significant up and down motion to cover the entire depth of the hull.
The final citation is a patent issued in 1987, a year prior to the issue of my patent, held by John Burgers, the man who holds my patent, and Ronald Setzer, who does not hold my patent. This patent is worrisome, for it is in most ways the exact same as my patent, with only a slight change. It consists of a device with along handle, and then a main section of material, long enough to run along the entire depth of the hull, made out of stainless steel with a thickness such that it can bend freely. Attached to the top surface of the steel is a scrubbing material, which can be used to clean the hull of the boat. In order to contour to the shape of the boat, several float devices are attached evenly to the underside of the steel, in this case small buoys made of PVC pipe. This bends the steel along the underside of the boat, allowing for scrubbing, and because it covers the entire depth of the hull, it does not take significant up and down movement to reach all areas of the boat.
Patentability Considering Hotchkiss v. Greenwood, 52 U.S. 11 (1850)
Hotchkiss v. Greenwood is considered the starting point for requirements beyond just technical novelty and utility in patent law. The matter in question was whether a patent about making knobs out of clay in a certain fashion was valid, where all the mechanical aspects and designs of the knob were not new, and making knobs out of clay was not new either, it was just that using clay in this one design had not yet been done. This made the device technically novel, as it had not been done before, and it had utility, as it was found to be better than other alternatives because it was cheaper, more durable, and aesthetically pleasing. Despite this, the court decided that the patent was not valid, deciding that the improvement was a work of "a skilled mechanic," and did not contain the quality of inventiveness that truly defined the spirit of the requirements to obtain a patent. This established a precedent that inventions needed to be more than just novel and useful, they must also have a quality about them that was not at once inherently obvious to anyone in the field.
In light of this decision, I would say that my patent holds valid in relation to the first three citations, but the fourth is a more difficult case. Certainly, in regards to the first citation, which uses a system of wires, with small brushes that may be inflated to become buoyant, I believe there are enough differences. Manipulation through the use of a handle, being able to stand solidly on a dock, is a key difference, but it is not as important I think as the shape and make of the cleaning device itself, which can cover the entire depth of the hull without being moved up and down. This means that the boat can be cleaned much more efficiently, as it covers much more area at once. Also, it is made of a buoyant material, rather than being inflatable, which poses some possible advantages, such as not having to fill it before use, and not carrying the risk of hitting something and puncturing the inflatable section, which would then not lift up to press against the boat, and therefore not scrubbing it. These are several key differences, which although perhaps at first sight may not be so groundbreaking, are clearly more efficient than the citation, and a large enough departure to have required some kind of inventiveness.
I would still say that my patent holds valid in light of the second citation, although they have more in common. This brush is made of buoyant material, but still contains the option for a version with an inflatable section, which would pose the same risks I outlined above. This brush also has a long handle, although this has points of articulation which my patent does not include. This is because the brush still has a small surface area, and therefore does not cover the entire depth of the hull, giving my patent a clear difference and advantage. The points of articulation may also be a disadvantage in design compared to my patent, as they are freely permitted to move to allow the brush to float up to the underside of the boat, they are also free to move when a man tries to scrub the bottom, perhaps not translating his motion very efficiently, and making it that much harder to clean the entire surface.
I believe that my patent holds valid despite the third citation. It is another brush with a long handle, although it is different from the rest of the devices in a few key ways, for better or worse. It has a handle, but unlike my patent or the previous, it not only bends at a point to allow the buoyant brush to contact the hull of the boat, it also has a telescoping end, allowing the length to be adjusted depending on which point of the boat someone is trying to reach, or perhaps for larger and smaller boats to make the task easier. This is an interesting improvement upon the past handle, but is still only necessary because of the small nature of the brush. In this way, my patent still holds an important distinction. It also speaks to the ingenuity in my patent's design if after three separately made devices, over the course of nearly 80 years, no one has made a cleaning surface capable of contacting the entire depth of the boat hull at once. Another key difference between my patent and the third citation is that the third citation does not use a buoyant material to make it float, rather, it uses a hollow chamber which, while not only holding extra cleaning devices, allows the brush to float up to the hull by filling it with certain amounts of water. This may seem an advantage, as it allows one to adjust the buoyancy rather easily, but the only reason that the device even needs to adjust buoyancy is because it does not contact the entire depth of the hull to begin with and therefore is actually a decided disadvantage to my patent's design.
The fourth citation is the most troublesome. In light of Hotchkiss v. Greenwood, I believe my patent could hold valid. Since they were in fact made by the same person, and both fall within about a year of being issued, it comes as no surprise that they are very similar. The main difference between the citation and my patent is the method of making the device buoyant to contour to the boat hull. Unlike the previous citations, the basic shape and length of the cleaning material is the same, meaning both contact the entire boat hull, making it very efficient. The only difference is in the use of buoyant material in my patent, versus the attached floats made of PVC on the citation. The decision of the court was that a simple substitution of material is certainly not valid. This is not the case between these two patents. However, the overall explanation of the decision is that it should have a measure of ingenuity or inventiveness, which would render it so that no random, yet skilled mechanic in the field could improve the device. Although replacing the floats by making the material itself buoyant may seem inventive at first, the idea of using buoyant material, rather than inflatable sections or other float type objects, is present in citations 2 and 3. It would not seem so far-fetched then, that some person in the field of "boat hull cleaning devices" would not see the third citation and immediately think that it would be simpler or more efficient to simply use a buoyant material instead of floats, as has been done in the past. However, there is a second change, in the way that the scrubbing material affixes to the steel of the third citation or the buoyant material of my patent. In my patent, the material is joined by fastening strips, instead of glue, and this allows the cleaning material to be detached when worn down and replaced, without replacing the device itself or having a difficult time trying to peel it away and then having to find the proper material to reattach it. This is, however mentioned in citation 3. Nonetheless, this makes two differences between citation 4 and my patent, and I believe that it would be enough to warrant an improvement of ingenuity, though it is a much closer case.
Patentability Considering A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950)
This case was about the validity of a patent for a counter for checking out items from a store, which had a device which could be pulled forward to bring goods to the checker, and then slid back into place without the goods going with it. All the technologies used in this patent were previously used, just not necessarily in combination as they were in this particular instance, with the only novelty of the device being an extension to the length of the counter. The court found that the patent was in fact not valid, because an extension of the counter was not inventive enough to make the device inventive, and the combination of old technologies was not more than the sum of their parts. The findings of this court establish that in order for a combination of old technologies to be considered inventive, even if technically novel in that they had never been combined and having utility in that they are useful together, the device made of them must exhibit some property which they do not individually exhibit. In other words, a new function, or a drastically unexpected improvement must be found in the combination in order for the patent to hold valid. With regards to the four citations in my patent, I do not believe there is a way that my chosen patent could hold valid based on this court's findings.
My patent does manage to hold valid in relation to the first citation. There is no buoyant material in the first citation, and it also operates on a basis of wires. This keeps my patent from being a combination of its technologies, and I think that it is quite clear the two are different, with my patent being the more effective, for reasons discussed above.
My patent probably does not hold valid in relation to the second citation, however. The buoyant material is introduced here, as well as using a handle instead of wires. Effectively, the difference then becomes the fact that my patent's material can bend in the proper way to allow a long shape which can contour to the bottom of the boat. I do not know for certain if this material was available at the time, but if it was, then certainly my patent appears to emulate this case in the fact that it would be using a combination of previously known technologies, with the only difference being an extension of the dimensions of the brush. Although it may be more efficient, and although it may be different enough in some sense to be considered novel and useful enough to secure a patent, by this court's strict standards, I do not believe any part of the device gives rise to a new functionality. There is no unexpected result of the combination. I find it difficult to believe that this court would find that my patent constituted a whole that was greater than the sum of its parts, even if they were cleverly assembled in a way that had not been done over the last 80 years. Unless my patent is using a material not known of at the time, in which case it would be patentable, as it would have a clearly new and inventive feature in being able to be buoyant and bend to fit the contour of the boat while being long enough to cover the whole thing.
Similarly, if my patent already cannot hold valid against the second citation, I do not think it could hold valid against the third. Whether the material my patent uses is made yet is still unknown to me, so it follows the same stipulation: if it was, my patent cannot hold valid, if it was not, then my patent could hold valid.
The fourth citation certainly eliminates the validity of my patent. The material, the last question of whether or not it was not just a combination of known parts or in fact had a very different technology not yet seen in it, is not used in the fourth citation, but effectively replaced, as the device manages the same contouring motion without it. In this case, I find my patent to be very much a combination of old technologies and ideas, with only substitutions to claim for novelty. In this case, I do not believe there is any way that my patent could hold valid.
Patentability Considering Lyon v. Bausch & Lomb, 224 F.2d 530 (1955)
Lyon v. Bausch & Lomb is a case under the new (at the time) non-obviousness clause, 35 USC 103. This clause returns to the standards of Hotchkiss v. Greenwood, in that it is a non-obvious improvement to someone skilled in the art, meaning that the change has to be inventive, even to those who are familiar with the subject matter. Another thing set by the clause is that it is irrelevant how the improvement or invention was made, whether by a single bright idea in a moment, or a long, laborious process over the course of years. Although this does not have much bearing on the previous cases discussed, it was important at the time, when a "flash of genius" test that specifically made it hard for people who worked on their invention over the course of years made it difficult to secure a valid patent. As such, I believe that this case falls closer in severity to Hotchkiss v. Greenwood, and not A. & P. Tea Co. v. Supermarket Corp. In essence, I believe that Hotchkiss v. Greenwood first established the idea of non-obviousness in a manner that was more defined and explainable, and over time, up to A. & P. Tea Co. v. Supermarket Corp., non-obviousness became a more "powerful" concept, in that it was harder and harder for people to have non-obvious ideas. Certainly, this can be observed in a sense from the "flash of genius" test, which would exclude people with worthwhile inventions securing a patent just because they did not come up with their idea all at once, but rather had to tinker and toil to make it work. Since the new clause struck down the "flash of genius" idea, I see it as more of a return to the initial interpretation of non-obviousness, in a way making it easier for new devices or combinations to be non-obvious. In this way, I believe that my chosen patent would hold valid under the decision of Lyon v. Bausch & Lomb, and therefore the non-obviousness clause.
A Question Specifically Regarding the Fourth Citation
In the end, however, I still have some question over the fourth citation in my patent, and my patent itself. Being made by the same person, and so close to one another, my patent was still issued, evidently being worthy of a patent according to the patent office, at the least. I have tried to search and see whether or not something like this would be valid if the two inventors were different, but I can't find anything or come to a conclusion. I suppose it is a question of whether or not my patent was able to be issued because it was truly worthy of it in light of the fourth citation, or whether that was possible because the holder of the fourth citation was the same person. I know that patents give exclusive rights to the holder of the patent, and I don't know if that is grounds to patent similar things based off of it. I would assume not, as the standards for obtaining a patent are designed as such that it does not matter who holds the older knowledge in a patent, or whether it has passed into public domain, but rather that the subject of the patent be new and useful enough to warrant it on its own. Therefore, just because someone holds a patent does not mean they can receive another valid patent for something similar which would be obvious. It was with this thinking in mind that I viewed the similarities and differences of citation 4 and my patent, and came to the conclusion that my patent was indeed different enough, though similar, to secure a patent in its own right. If this is in fact not true, then I suppose my reasoning could be wrong, and perhaps the device itself is too obvious to grant a patent. However, given no definitive answer yet, I stand by my reasoning.
