Week 6 Blog #4: Novelty and Non-Obviousness

In this video by Rich Goldstein, a patent attorney, he goes into discussing the difference between novelty and non-obviousness.

For novelty, he points out that basically the definition for it is that there is nothing exactly like it in prior art. Proving non-obviousness is the challenging part however. Whatever is different about your invention from what others have done before, you need to show a sense of unexpectedness so someone in the field can witness enough of a difference where they do not come to the conclusion that the invention isn't something they would ordinarily use, but can create and utilize if they wanted too. He gives an example of child-size clothes hangers and while that may be a novel invention, manufacturers have the capability to create this invention, but they simply chose not to. In that case then, the standardization of clothes hangers makes the invention novel, but the production capabilities of individuals in the field can make the same invention if they chose to.

Week 6 Blog #3: AstraZeneca's Drug Patent Deemed Obvious

This article was published on Law360, a website that reviews recent patent decisions. The link to it follows: http://www.law360.com/articles/621755/astrazeneca-s-kid-asthma-drug-patent-deemed-obvious.

A federal judge ruled that AstraZeneca's patent on a generic version of pediatric asthma medication, specifically the patent for sterilizing the drug was invalid as obvious. The judge, Renee Marie Bumb, entered a judgment of non infringement for the defendants ruling they had sufficiently shown there were multiple techniques for sterilization in prior art. While AstraZeneca had initially won an appeal of a non infringement ruling, a Federal Circuit reversed the ruling and remanded the the case, leaving the judge to rule that the patent's claims describe methods of sterilizing the drug that were obvious.

One of the reasons this caught my eye was the fact that we tend to forget the scientific processes behind biotechnology firms in examining patent law. I found it interesting to witness how the defendants managed to prove how there were other known techniques to prepare a sterilization for the drug and how the healthcare industry competes for these different patents to produce the basic medicine necessary for our society. Reading about this demonstrated to me how patents can go way beyond our traditional thoughts of technology and their impact they can have on the pharmaceutical care that we are exposed to.

Week 6 Blog #2: Obviousness is King

Patent Office Litigation Prediction #3: Obviousness is King

*Please click on link to watch video. Unfortunately, I could not upload it directly onto blog for strange reason.

In this blog, I will be discussing the challenges that patent owners now face in terms of recent legislation concerning the obviousness of their existing patents. In this video, Robert Greene Sterne, a patent attorney, provides one of his predictions for a new contested competing world. Contested proceedings test patentability of issued patents before a newly created Patent Trial and Appeal Board. If this test is not met by a patent owner, then this will prove to be fatal for this owner and cause his previously valid patent to become removed.

Greene points out that in order for an invention to be patentable, it must be non-obvious over prior technology. His prediction lies in the fact that he believes these new contested proceedings will feature the issue of obviousness as the central theme. Essentially, this appeal board second guesses the work conducted by the original patent examiners. Obviousness is a tricky issue for patent owners because you need to able to provide the Patent Trial and Appeal Board the best evidence on why your invention is so significant, but this is difficult because of short time period proceedings, which will only be around.

Greene conclude that patent owners must be concerned and prepared for their defense of obviousness in these proceedings, move rapidly to provide evidence, and to prepare and look far out to eventual appeal if their original patent is ruled non-obvious by this newly created board.

Week 6 Blog #1: A Focus on Obviousness

The goal of this week's blog is to examine more into the case of obviousness in the patent world. As discussed in lecture, the non obvious requirement of the patent law looks at multiple pieces of prior art so a person having ordinary skills in the art wouldn't have easily thought of it given the plurality of prior art.

In lecture, an example we went over involved a "glow-in-the-dark toothbrush" invention that was filed to be patented. We noted that while the argument could be made that the invention is obvious when comparing it to the prior art of a glow stick and tooth brush, a case for non-obviousness could be constructed with the defense that the prior art references came from different fields, thus making it less obvious to combine the two prior art than one might conclude. Alternative design cases such as these and whenever an examiner refers to more prior art references has been shown to actually demonstrate the greater non-obvious nature of patent filings.

Bruce Kramer, a patent attorney at Sughrue Mion, PLLC, further delved into the case of obviousness in his article, "Nonobviousness- An Essential Requirement for Patentability". In this article, Mr. Kramer pushes into greater detail about the USPTO's definition of "non-obviousness. The concepts he focuses primarily on include the concepts of prior art, a person having ordinary skill in the art, and the time the invention was made.

In terms of prior art, similar to what we discussed in lecture, Mr. Kramer simply states the definition of what this constitutes, which is prior patents, published patent applications, journal articles, and other references upon which a patent examiner can rely on. When writing on "ordinary skill", Mr. Kramer makes it clear that this does not refer to an expert in the technology, but rather one of an average skill in the technology to which the technology pertains. Ordinary skill however can vary depending on the invention involved. Finally, the time the invention was made is important to consider. Due to the rapidly changing landscape of the technological sphere, it is critical for an examiner to distinguish whether a claimed invention would have been obvious in view of the state of the art at the time the invention was made, not at the time it is being examined. While it may be obvious today, an invention may have not been so obvious at the time it was made.

In the case of Graham v. John Deere Co. (1), the Supreme Court set forth three factual inquiries to be used in considering whether an invention is obvious or non obvious:

1. Determining the scope and content of the prior art
2. Ascertaining the differences between the prior art and the claims at issues; and
3. Resolving the level of ordinary skill in the pertinent art

In essence, when examining obviousness, the following principles ought to be applied in such as analysis:

1. The claimed invention must be considered as a whole 
2. The references must be considered as a whole and must suggest the desirability and thus the obviousness of making the combination
3. The references must be viewed without the benefit of impermissible hindsight afforded by the claimed invention
4. Reasonable expectation of success is the standard by which obviousness is determined 

By fulfilling these principles, non-obviousness can be established when making the case for a patent. While patent law pertaining to obviousness vs. non-obviousness still demonstrates many gray areas, specifically speaking to the broad-based nature of these principles, these factors that are considered in this analysis provide a baseline into determining the obviousness of certain patents when filed. 

Week 5 Blog #3: Evaluation of Two Additional Patents and their Claims

US 7,922,031 B1 – Insulator Sleeve for a Beverage Container:

• Priority Date: March 1^st, 2006
• Background: The insulator sleeve provides a reusable beverage sleeve for a frusto-conical beverage cup, rendering prior art disposable sleeves unnecessary.
• Anticipation and Obviousness: The issue that arises with this patent is all it simply does is transform the traditional disposable beverage sleeve into it being reusable. However, this claimed invention couldn’t be ruled as anticipated due to the structure of its claims as no one had known about or used the invention before the patent had been put into place. What makes this invention novel is the description of it provided in claim #1. The unique structure of the invention listed in claim #1 through describing the invention as “having an inside diameter sufficient to allow at least partial insertion of the inner sleeve within the outer sleeve such that the inner and outer sleeve are coaxially aligned” is a disclosure that is not available as prior art. Furthermore, the construction, design, and materials utilized that are described in the later claims differentiate this invention from any predecessor or similar inventions created before. Therefore, while this invention may not be very novel, it nonetheless possesses validity due to the unique nature of its claims.

US 2,661,889 A – Thermal Coffee Cup:

• Priority Date: July 20, 1948
• Background: The thermal coffee cup was designed to provide a container adapted to receive a coffee cup which would normally be too hot to handle whereby the inner coffee cup would be insulated from the hand.
• Anticipation and Obviousness: There is only 1 claim to this invention, but what it presents is a design that is both novel and non-obvious. This claim divulges into the design of the overall product and how each component works with each to ensure that the invention works. While simple, this invention is one that cannot be anticipated over a disclosure that is available as prior art as nothing of its kind in thermal beverage insulating technology had existed before. The one claim describes how this invention was designed to provide a cover cap with a lip so the contents of the cup could be kept covered and heated and the purpose of this was to provide a combined holder and coffee cup which was convenient and efficient for manufacture and use. Therefore, the novelty and non-obvious nature of this invention reinforces the validity of the patent.

Week 5 Blog #2: My Personal View on Anticipation and Obviousness

US 6,343,735 B1 - The Insulating Sleeve:

• The validity of this patent can be upheld as this is an invention that it quite novel. Traditionally, foam cups had been utilized to protect consumers from the heat emitted by a cup so this idea can be considered non-obvious as it differentiates itself from the foam cup and traditional sleeve.

US 2,661,889 A – Thermal Coffee Cup:

• The validity of this patent can be upheld as this invention, when it was created in the 1940s, was completely new as there had not existed an invention that had been patented before to carry hot beverages. Due to its widespread use, non-obvious nature, and lack of prior art at the time, this patent had substantially strong validity.

US 8,251,277 B2 – Thermal Sleeve, Method for Manufacturing a Thermal Sleeve, and Combination Cup and Thermal Sleeve:

• The validity of this patent is not as strong due to the obvious nature of the entire invention. It simply expands on the thermal, insulating sleeve patented earlier so its close relation to the prior art makes it simple to anticipate its purpose and use. 

US 7,922,031 B1 – Insulator Sleeve for a Beverage Container:

• The obviousness of the patent weakens the validity of this as it simply allows for the sleeve to be reusable. Its lack of differentiation makes it prone to becoming invalidated in light of evidence suggesting its obviousness and lack of invention.

US 8,118,189 B2 – Temperature-Indicating Sleeve and Related Container:

• The validity of this patent is very strong due to the fact that it introduces the new technology of allowing consumers to know the temperature of their beverage. Due to its novelty, the non-obvious nature of this patent allows for the enforceability of this patent.

US 6,152,363 A - Sleeve Construction for Improved Paperboard Cup Insulation:

• Due to the new technology of hot-melt glue dots, the validity of this patent can be established as it incorporates a new solution for thermal insulation. The non-obvious factor established by this technology is what maintains the validity of the patent.

US 20080078824 A1 – Beverage Cup Sleeving System and Method:

• The ability for users to insulate both hot and cold beverages was a new technology that makes this patent quite non-obvious. Due to its non-obvious nature and novelty, the validity of this patent is upheld as the argument behind the extra features that this technology incorporates is its primary defense.

US 20100019023 A1 – Protective Sleeve:

• While the overall technology is rather standard and is not relatively new, the “arch” design is the feature that makes this patent quite novel. Due to the overall change in design, the validity of this patent can be defended, as the prior art did not possess such a feature.

US 20140151385 A1 – Hot and Cold Cup Sleeve:

• The sleeve for hot and cold beverages was a relatively new technology making its validity quite strong due to its novelty and non-obvious nature.

Week 5 Blog #1: An Overview of Beverage Technology Patents

US 6,343,735 B1 - The Insulating Sleeve:

• Filed on May 4^th, 2000 and patented on February 5^th, 2002, the insulating sleeve was designed for insulating a user’s hand from a hot beverage cup.
• The patent describes that for years, foamed plastic was utilized for cups meant for hot beverages, but due to environmental reason, foamed plastic had fallen into disfavor.
• The insulating sleeve provides an economical and disposable service that presents a user with a gripping surface that remains at a comfortable temperature no matter what the temperature of the liquid within the container.
• The technology behind this featured first and second wing portions extending outwardly from the container side wall and spaced apart therefrom by spacer elements to from air gaps between the wing portion and the cup.
• The drawings of this were for the purpose of illustrating several preferred embodiments of the invention only and this invention features 18 claims

US 2,661,889 A – Thermal Coffee Cup:

• Filed on July 20, 1948 and patented on December 8, 1953, the thermal coffee cup was designed to provide a container adapted to receive a coffee cup which would normally be too hot to handle whereby the inner coffee cup would be insulated from the hand.
• This was designed to provide a cover cap with a lip so the contents of the cup could be kept covered and heated and the purpose of this was to provide a combined holder and coffee cup which was convenient and efficient for manufacture and use.
• 4 diagrams are utilized and there exists only 1 claim describing the design of the invention thoroughly.

US 8,251,277 B1 – Thermal Sleeve, Method for Manufacturing a Thermal Sleeve, and Combination Cup and Thermal Sleeve:

• Filed on April 15, 2005 and patented on August 28, 2012, the thermal sleeve was designed as a cup sleeve for wrapping a cup and providing thermal insulation.
• The cup sleeve includes a creped paper product having a first end, a second end, a first cup opening, and a second cup opening, and an adhesive holding the first end and the second end together to form a wrap wherein the wrap is sized to enclose a cup.
• The advantage behind using cup sleeves is the reduction of paper while achieving a desired level of protection from heat.
• The 3 drawings provide perspective and sectional views of the cup sleeve in separate configurations and of the laminate structure.
• There exist 13 claims describing the dimensions and material utilized for the production of the cup sleeve.

US 7,922,031 B1 –Insulator Sleeve for a Beverage Container:

• Filed on March 1, 2006 and patented on April 12, 2011, the insulator sleeve provides a reusable beverage sleeve for a frusto-conical beverage cup, rendering prior art disposable sleeves unnecessary.
• This consists of at least a portion of the outer sleeve being transparent and including a textured gripping surface and a customized inner sleeve that may be marked to indicate a favorite drink of the user.
• This sleeve has the ability to prove more economical in regards to production compared to disposable sleeves and this is even more effective at insulating a consumers hand from the heat of a hot beverage than a disposable sleeve alone.
• This patent features 9 drawings and 13 claims.

US 8,118,189 B2 – Temperature-Indicating Sleeve and Related Container:

• Filed on December 14, 2007 and patented on February 21, 2012, the temperature-indicating sleeve is a sleeve with a temperature indicator in or on the sidewall, thereof, which is visible from outside the sleeve.
• The sleeves comprises of a temperature indicator on the sleeve wall capable of determining a temperature of contents of he container to an accuracy of within about 4 degrees Fahrenheit and a container is provided with the sleeve which has a temperature sensitive indicator that indicates the temperature, temperature range, or degree of hotness or coldness of the contents therein.
• This allows for consumers to make an individual decision as to what temperature, temperature range or degree of hotness or coldness is best for them to consume the contents of the cup or container.
• This patent features 11 drawings and 18 claims.

US 6,152,363 – Sleeve Construction for Improved Paperboard Cup Insulation:

• Filed on May 3, 1999 and patented on November 28, 2000, this invention relates to the construction of sleeves for use with paperboard cups.
• This employs a paperboard sleeve backed with hot-melt glue dots, which are used to improve the insulating characteristics of a paperboard cup to the same level of common polystyrene cups.
• The lightness in weight, ease of assembly, good durability, and excellent insulation characteristics makes the quality of this invention considerably higher than achieved in prior, known sleeve constructions.
• This patent features 5 drawings and 5 claims.

US 20080078824 A1 – Beverage Cup Sleeving System and Method:

• Filed on August 23, 2007 and patented on April 3, 2008, this invention is a cup insulating system, comprising of a layer of elastomer formed into a seamless conical sleeve which has an upper opening and a lower opening, wherein the upper opening is configured for receiving a beverage cup.
• This provides an insulating cup sleeve that is effective when wetted, effective against high and low temperatures, is reusable and easily manufactured.
• Possesses multiple layers with elastomerics such as silicon and rubber for insulation and features a smooth surface with distributed raised surfaces.
• The 18 claims made discuss the purpose and production of the sleeving system with the multiple components that comprise of the method and the drawings demonstrate the benefits and simplicity of the system.

US 20100019023 A1 – Protective Sleeve:

• Filed on July 21, 2009 and patented on January 28, 2010, the sleeve is disclosed as having a unique arch-like shape that facilitates manufacturing material efficiency and therefore reduces material costs and environmental waste.
• The sleeve, when unassembled and laid flat, is a blank with top and bottom edges, which have an arch-like formation, created by peaks and troughs.
•  The 6 diagrams presented illustrate the sleeve from different views and a diagram of making a sleeve while the claims describe the production and utilization of the sleeve.

US 20140151385 A1 – Hot and Cold Cup Sleeve:

• Filed on February 6, 2014 and patented on June 5, 2014, this invention is a sleeve for use with hot or cold beverage cups.
• The sleeve is composed of three layers: the inner layer is water-absorbent, the outer layer is made of a synthetic fabric to keep the hand dry, and the outer layers are adhered together with a polyethylene film, which is not visible after fabrication.
• The sleeve is extremely lightweight, thin, inexpensive, and disposable and the diagrams provided highlight its features and simple assembly.
• Its 12 claims make clear what the purpose behind this sleeve is, how it differentiates itself from prior art, and the production of the sleeve.