EB: Friday, February 4: Obviousness v. Non-obviousness of Adams Battery

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Argument for Non-obviousness

The basic criteria for non-obviousness, as expressed in 35 US 103, is that the subject matter must not be "obvious at the time the invention was made to a person having ordinary skill in the art." Distinct evidence exists which implies that Adams' battery was unexpected, even thought to be impossible to people very skilled in the art of batteries. One such skilled person, Robert T. Wood, developed a battery (patented in 1928) which utilized magnesium as the negative electrode of a battery; in his patent document Wood clearly expresses the general consensus of the prior art stating that the use of magnesium as a primary electrode is not practically possible. He claims, "it has been generally accepted that magnesium could not be commercially utilized as a primary cell electrode." Thus, Adams' use of magnesium is not only non-obvious to those skilled in the art, but it is in fact distinctly contradictory to generally accepted principles of the art.

Furthermore, Wood asserts that others had unsuccessfully experimented with using magnesium as a negative electrode due to its potential to create a high voltage cell. Wood’s invention involves such a magnesium battery (he uses an oxidizing agent in the electrolyte to reduce corrosion of the magnesium); however, there is no indication that Wood nor the previous failed experimenters whom he mentions thought to use magnesium as the positive electrode (As is the case in Adam’s invention). The fact that previous experimentation in the field of magnesium electrodes were devoid of utilizing the material as the positive electrode implies the non-obvious nature of such an innovation. Had such a use for magnesium been obvious, surely prior scientists would have at least experimented with positive magnesium electrodes; and yet, there is no mention of such experimentation. In addition, previous experimentation in the field of magnesium electrodes indicates the desire/need for such a battery, and the fact that a solution was not discovered in conjunction with the demand further implies its non-obvious nature.

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Argument for Obviousness

Precedent has established that the combination of known elements cannot constitute a patent when no added functionality is present. Adams’ battery is merely a combination of known techniques in the art of batteries. The Wood patent previously disclosed the successful use of magnesium as a primary battery cell electrode. Furthermore, substitution of materials for electrodes is a common practice in the art; the Wood patent is evidence that one such substitution, magnesium for zinc, existed prior to Adams’ filed claims. Adam’s battery is simply another example of substitution with superior materials improving the performance of a known device, as was the case in Hotchkiss v. Greenwood, 52 U.S. 11 (1850). Adams makes no significant change to the general science of batteries, but simply combined two superior materials, making substitutions as is common in the art. Thus, Adams’ claims are obvious under 35 US 103.