Due Friday, February 4, 2011

Assume it is 2015 and you work for one of the companies in either the Graham or Adams case. Your corporate counsel has approached you to get information needed for litigation about why the patent being litigates is or is not obvious in light of the prior art. Based only on the two patents you read for Wednesday's assignment, write an analysis providing all the reasons supporting a conclusion of non-obviousness and an analysis providing all the reasons supporting a conclusion of invalidity of the patent under 103. That is, give both sides of the argument.

Obvious:

The '798 patent is invalid under the requirements of Section 103. The code states that the differences between the subject matter of the patent and the prior art must not be such that the subject matter as a whole would have been obvious at the time the invention was made to a person of ordinary skill in the art.

The '798 patent differs from the '811 patent primarily in two capacities:

• The bolted connection between the hinge plate and the shank causing constant contact with the hinge plate.
• The positioning of the shank below the hinge plate, as opposed to being placed between the hinge plate and the upper plate.

One may argue that these differences warrant a valid patent in that they make improvements upon the system depicted in the '811 patent to the extent that the device is able to accomplish its initial task of preventing the shank from breaking due to the vibrations caused by the plow running over rocks or other debris. The ability of the shank to more freely move in the '798 patent allows the shank to absorb vibrations much more effectively than when the shank was enclosed by the hinge plate and upper plate and the vibratory motion of the shank was restricted.

Nonetheless, the patent is invalid because such improvements upon the '811 patent would have been obvious to a person of ordinary skill in the art at the time of the invention. The initial design was ineffective because the shank had limited mobility in absorbing vibrations from hitting debris. When setting out to resolve this issue, it follows naturally that the solution would be to allow for a wider range of motion of the shank by not having it sandwiched between two plates. As far as the bolting assembly goes, similar fastening techniques had been seen in the Glencoe clamp and Pfiefer patent referenced in the Graham patent. It is obvious that whatever fastening device would be employed in attaching the shank to the bottom of the hinge plate would have to allow the shank to achieve its full range of motion. The employed bolted connection accomplishes this, but it does not require anything more than ordinary skill to address the need for it or to find a suitable connecting method to achieve this mobility. Thus, though the improvements upon the '811 patent may have been novel, they were obvious in terms of what a person of ordinary skill in the field would have done to improve upon the previous design.

Non-obvious:

The '798 patent is valid because it meets the requirements for a valid patent, including non-obviousness. The improvements made to the previous design are such that the entire effectiveness of the device towards its intended purpose is dictated by them. The '811 patent employed a shank connected in between the hinge plate and the upper plate in order to absorb vibrations caused by the shank hitting debris such as rocks, which threaten to break the shank. This design was issued a valid patent, as meeting all of the necessary requirements stated in the code. The design was inventive and effectively progressed the technology of the art. This is the ultimate goal of the patent system - to encourage inventiveness and the creation of new technologies. Thus, it is clear that the concept of having a movable shank to absorb vibrations is considered to advance the science of the field.

Since the design proposed in the '811 patent did not fully accomplish its intended task, due to limited mobility caused by the positioning of the shank relative to the hinge plate and upper plate, the full potential of the proposed design was not realized, and thus neither was its impact on technology in the art under consideration. The improved design of the '798 patent contains critical improvements towards achieving the desired effect of the device. The added mobility of the shank due to its hinged location below the hinge plate allows it to effectively absorb vibrations. It is through this improved design that advancements in the art will be made, and thus it is the improved design that is worthy of a valid patent.