Lyon v. Bausch & Lomb SKH

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Analysis of modern nonobviousness and closing remarks

In enacting §103 of the U.S. Code, Congress sought to reform the patentability criterion of “inventiveness” that had stood, however confusingly, from the days of Lincoln and A. &. P.. The Lyon Court recognized that many elements of the process that Lyon used were similar to processes that were used, published, and commonly known in the field before he made his invention. However, most of them “so widely diverged from that of Lyon that under §100(b) they would not serve as anticipations.” Furthermore, even the closest to an “anticipation” did not take the crucial step that Lyon took—the second step that allowed him to create a coating that many people, including the United States Navy, recognized as a pressing need.

Similarly, while many of the process steps and devices used in the Levy patent might have been used before, he was able to integrate them in such a way as to satisfy a long-standing need in the field which had never before been adequately addressed. The production and extraction of n-butanol from carbohydrate substrate was not accomplished to an acceptably profitable state. Several aspects of Levy’s invention were important in this respect. The addition of the culture matrix and the recycle methods into his extraction reduced costs significantly. The modern processes of fermentation and extraction of n-butanol all rely on a culture matrix that hearkens back to Levy. Modern processes look strikingly similar to Levy’s device; the arrangements of Wheeler et al and Liebmann et al might have worked in principle and on bench-scale, but industry-scale processes cannot realistically use either one. The arrangement that Levy began is currently being deployed by several companies in pilot-scale plants. The culture matrix, the recycle loop, and the achievement of adjustable flows in the extraction tower were all nonobvious under the requirements of 35 USC 103 as shown under Lyon.

The standards of inventiveness or nonobviousness changed significantly between Hotchkiss and A.&P. and Lyon. Certain factors that would have served to bar patentability in the past were eased. With regard to Hotchkiss, cases must be examined closely before “mere substitution” might be used as grounds to bar patentability. The sharp distinction between “aggregation” and “invention” arose at the time of A.&P., but its restriction has also relaxed, as shown in the discussion pertaining to the Lyon standard. At the time of A.&P., patents were viewed as being reserved for very elevated purposes; they had to contribute substantially to scientific advancement. Despite the confusion around the standard for invention, everything was absorbed into nonobviousness with the enactment of 35 USC 103. In short, the Lyon Court examined the context of the patent closely, and so the Lyon standard is better at recognizing when significant advances to a particular field are accomplished. From this perspective, the dissenting opinion in Hotchkiss is closer to the modern standard than what the Court held at the time. Seeing the value in an invention that was similar to something that came before except that it was "better" and "cheaper" ties into today's standard of, among other considerations, meeting a long-felt need in a field.