Homework 2 - Analysis of my Patent for Non-obviousness - Due 1/28

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Description of my patent and pertinent referenced patents

The patent under analysis here [1] was invented in order to measure the accumulated forces acting on various items of sporting protective gear over a period of time. The device is fixed to the gear, an example of which, a football helmet, will be used in this analysis, either during manufacturing or at a later date. The device senses forces which are applied to the helmet and then delivers a proportional signal to a circuit which determines the accumulated force on the helmet. The circuit is also capable of decrementing the accumulated force based on a predetermined pattern in order to reflect the recovery of the user during times where less force is applied to the helmet. In the patent application for the device, the inventor references some instances of prior art, two of which have been selected as the most suitable for the purposes of a non-obvious analysis.

The first related patent which was filed before the current device is an “apparatus for determining levels of physical loads” [2]. This apparatus, when combined with a previously patented “electronic ergometer” can be attached to various parts of an individual who is performing any type of movement. The ergometer interprets the physical loads based on the amplitude of oscillations of the body and the present device interprets the level of the physical loads as related to the predetermined minimum, optimal, and maximum physical loads for the individual. The primary purpose of this device, as stated by the inventor, is to help individuals maintain the suggested level of physical activity that will improve his or her health. The inventor cites specific individuals, such as those at high risk for cardiovascular disease, for whom the device is most suited. The author of this patent application never specifically indicates what “physical loads” are measured, but the purpose of the device leads one to believe work is the primary physical property being measured and analyzed.

The second referenced patent, also filed previous to the device presently under analysis, is an “analyzer for resultant force at joints” [3]. This device can be externally attached to an orthopedic joint in a human or animal in order to determine the resultant force on that joint. A pair or cursors, attached to the joint as well as to two potentiometers can be used in junction with standard x-ray technology to measure the relative force values from potential signals at specific points on the joint which are then stored in an attached computer for further manipulation and analysis. While methods to analyze the resultant force on a joint existed prior to the application for this patent, the inventor claims to have greatly improved upon them with a device that is not intrusive, is relatively inexpensive, and can be operated by any person. The author offers no other possible adaptations for this device apart from measuring the resultant forces on joints, particularly recently replaced artificial joints.

The purpose of this analysis is to discuss the evolution of standards of non-obviousness and apply to the patent in question here to determine if the invention would be patentable under the different standards in the three cases: Hotchkiss, A&P, and Lyon. The concept of non-obviousness has been a factor in determining the validity of patents for sometime but was only recently codified with specific standards, as used in the Lyon case. The previous two cases demonstrate the standards of the court at the time of the case, which has evolved over time.

Analysis with Regards to Hotchkiss v. Greenwood

The case of Hotchkiss v. Greenwood (1850) analyzes the validity of a previously granted patent specifically as it relates to what is today referred to as “non-obviousness.” The patent in question in this case was one granted to an inventor for combining a knob made of clay or porcelain to a specific shank and spindle configuration. The patent also specifies the specific method of combining the two, a connection called a “dovetail.” In this instance, there was previous knowledge of knobs being fashioned of clay and porcelain, and also of the specific shank, spindle, dovetail formation, however not of the combination of the two. The inventor argued that his invention improved upon old knobs and was both “better and cheaper” in these regards. The defendant in the case, being sued for infringement, maintained that the invention was not the work of a “skilled mechanic” and therefore not subject to patent. The Supreme Court had to determine the standards of patentability as they related to the obviousness of the present combination with regards to the previously known components.

The documentation of the case gives some insight into the standards of non-obviousness used by the Supreme Court to determine that in this instance the granted patent was invalid. The plaintiff wished to instruct the jury that if the article was “better and cheaper” then the patent was valid. The defendants likewise instructed the jury that if the combination of the previously known components required “no other ingenuity or skill…to construct...than that of an ordinary mechanic acquainted with the business” then the patent was invalid. The decision of the Supreme Court to rule the patent invalid would suggest that they deemed a certain amount of inventiveness necessary in the development of the article and “better and cheaper” not high enough standards. Although they agreed that the knob was an improvement, it was stated that this improvement did not “result from any new mechanical device or contrivance.” The Court ultimate used the standard that an article must be the work of an inventor, rather than a skilled mechanic, in order to be a patentable invention. A dissenting judge in the case, however, believed the standards of “better and cheaper” met the “new and useful” requirement, and were thus sufficient grounds for a patent

According to the standards of the Court in this case, I believe that the force accumulating device would still be patentable, although likely with some more intense scrutiny with regards to the two referenced patents described above. While the current patent could have been view as an obvious extension the first patent, the device for determining physical loads, in terms of two devices which ultimately measure forces, it is likely that a court would have determined a certain amount of ingenuity was required to develop the new method of measuring said forces, as the new patent did not use the same method of measuring oscillations but instead directly measured forces imparted on a helmet and determined their accumulation over time. I believe the Court would also have decided that the current device was significantly different in both design and implementation than the device used to measure similar forces on a specific joint in the body. Had the only new feature of the present device been its attachment to sporting gear rather than the body and the calculation of an accumulated force, the device would have been deemed unpatentable by the Hotchkiss court, but with further examination one can see that the present device has significant inventive features compared to the two most related patents as well as a significantly different intended use which the Court would not have deemed “obvious” based on the previous inventions.

Analysis with Regards to A&P v. Supermarket

The case of A&P Tea Co. v. Supermarket Corp. was brought to the Supreme Court in order to assess the weather two lower courts, in holding three previously granted patents valid, had used the proper “criteria of invention” in determining the validity. The Supreme Court ultimate determined that they had not and therefore overturned the ruling, deeming the patents invalid. Similar to Hotchkiss, the patents in question here are examples of “combination” inventions and this Court uses similar standards to those discussed in the Hotchkiss case. The lower courts determined the combinations in question were “new and useful” and therefore subject to patent protection. This is the standard that the Hotchkiss court deemed invalid and the Court in the A&P case denied these standards as well.

The A&P Court specified that the only new feature in question was the elongation of a previously used cashier’s counter. The Court stated that invention “cannot be found in mere elongation of a merchant’s counter,” again appealing to the same standards of “inventiveness” discussed in the Hotchkiss analysis. This Court determined that the standards of invention with regards to combinations or previously known devices were elusive and therefore attempted to elaborate on them. One standard the Court cited was if the combination of known elements contributed more than its individual pars, then the invention was in fact that, and therefore patentable. The Court ultimately reversed the judgments in favor of patentability because the “standard of invention” used in the lower courts was less demanding than required by precedent. A concurring judge went further to state that it is the “standard of invention” which controls patentability and states that the present Court recognized this fact. He cites numerous examples of patents brought before the Supreme Court in which inventiveness was clearly not present and therefore the patents would have never been valid.

As before, I believe that under these standards, which were similar to Hotchkiss, the patent in question would still fall under the category of patentable. Although the device in question is a combination of previously known machines, one for sensing forces and one for converting these into a more useable electric signal, and although even the combination of these devices had before been implemented, the specifics of this combination demonstrated the required amount of inventiveness. The inventiveness comes from the method of force measurement, as well as the formation of the device into one that can be fastened to sporting protective gear, instead of to a body part or joint, as in the other patents, as well as the application of this device to determining whether the safety of an athlete is being compromised by not just a specific force but the accumulation of applied forces over a known period of time. The accumulation of the forces is often more harmful to the athlete and therefore the combination that this device utilizes is simultaneously new, useful, and non-obvious by the standards of the A&P court.

Analysis with Regards to Lyon v. Bausch & Lomb

The final case to look at, Lyon v. Bausch and Lomb, occurred in 1955 and is therefore the only of the three cases subject to the Act of 1952 regarding patentability, specifically with regards to non-obviousness. Prior to this Act, the only statue specifying the conditions of non-obviousness stated than an invention must be “new and useful” to be subject to a valid patent. Hotchkiss initially discussed the addition of more strict standards of inventiveness, further developed in A&P. The present case, Lyon, actually cites the Hotchkiss case as starting the precedent for the modern standard of non-obviousness codifies in 35 USC 103 which states that a patent may not be 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.” In the case of Lyon, the U.S. Court of Appeals upheld the validity of a patent granted to Lyon for a specific method of coating lenses to minimize damage and reflection.

The main in this case was weather the invention which the case centered around had been discovered prior to the application of the current patent holder, Lyon. The most likely prior inventor, a man named Cartwright, had, it was determined experimented with essentially the exact same technology but ultimately abandoned the invention upon deciding that it would never be successful at its given purpose. Although this decision seems somewhat removed from the concept of non-obviousness, the ideas first presented in Hotchkiss and the evolution of non-obviousness is thoroughly discussed within the summary of the Court’s judgments and findings.

As with the previous two cases, I believe my device would be patentable under the standards laid forth in the Lyon case, and this fact is proven by the existence of my patent, which was granted well after the codification of non-obviousness in 1952. There are many examples of devices which could have been invented prior which would make my patent invalid (such as one that measured the forces on sporting gear in a similar manner but did not add the forces to determine the total accumulation) with regards to the current standard of non-obviousness. However, neither of the two prior patents referenced by my inventor and discussed in this analysis are similar enough that one could reasonable state that a person of ordinary skill in the art would consider the improvement that my device offers an obvious extension of prior art.