For my last post, I will be talking about obviousness. The article talks about Graham V. John Deere Co(1959) In this case, Supreme Court ruled that these 3 things must be defined.
- 1. The scope and content of the prior art;
2. The differences between the claimed invention and the prior art; and
3. The level of ordinary skill in the prior art.
These are known as the Graham factors. They've been utilized by Court as controlling inquiries ever since. Court also mentioned secondary consideration to argue non obviousness
They are 1. Commercial success 2. long but unsolved needs 3. failure of others.
We can see these consideration as the following. Even if the patent or claims might seem obvious to the examiner, it can be explained by the petitioner if the applicant can present evidence that the product or invention achieved commercial success as result of invention. It proves that it's not something obvious as it's been clearly bought and used by others. Also, if evidence can provide that there was a long felt and un-resolved needs, then it must have not been obvious.
Lastly, if evidence suggests that many others tried to solve the issue but could not, it could also satisfy this condition.
So after all, it may seem like obvious, but it can always be talked about in these 3 conditions.
However, it's important to note that it's very subjective. It can vary depending on who the examiner is or who the jury/judge is. Patent world is very complex, as you already know.
Source:
http://www.the-business-of-patents.com/obviousness.html
It appears that proving the secondary considerations and how they illustrate the non-obviousness of a patent is much more difficult than proving the three Graham factors. Waiting until one's product becomes a commercial success can be a very risky maneuver; if someone creates a revolutionary product that's extremely popular...but fails to patent it, they've essentially shot themselves in the foot (well, more like the wallet). With the new rules regarding first to file instead of first to invent, a competitor could very well file a patent for your technology before you do and receive it without any issue. The only potential workaround is to file a provisional patent, which buys you a year to prove that your product is a commercial success--not an easy feat.
ReplyDeleteOn some sense, it may be difficult. But this could apply to products that sell very well within a small timeframe. Or if the product gets sued by other companies when the product sells, it would be a good idea to counter argue. This is all subjective in my opinion, but I feel that it's better than nothing. Also, something needs to be done with obviousness because this is a serious problem dealing with subjectivity.
DeleteI really like the point about commercial success. While patents are great for innovation and forcing industries to bring out new technology, in the end, the company is a business. The fact that individuals can argue their case in a business manner really takes into consideration the inventor's perspective. Patents aren't just a vehicle for driving research, but also to help businesses flourish.
ReplyDeleteDefinitely! After reading several articles, I feel that sometimes, patents just make invention from ever being formed. I like these points especially because even though invention could be made from prior development, it may not infringe on others after all. The only downside I see from this is that it is very subjective.
DeleteCan't something be obvious even if other buy it? However, I do see your point. Something becomes obvious to others over time after it has first been achieved. Therefore, a patent that is innovative and novel cannot be obvious. However, a second similar product or patent would not be innovative, because it seems obvious. However, does that mean patents that build off each other are technically obvious, because there is a previously established patent with similar technology or concept?
ReplyDeleteYeah it could be obvious. But I believe what this article is trying to prove is that even though it may seem obvious, if people buy something, they shed a light that it is another invention in a different form. For instance, if original idea was better, the new* invention would not sell.
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