John

Perhaps you should contact the Federal Circuit and let them know what they got wrong in their decision.

-Gene

1) ASTM used to stand for American Society for Testing and Materials, but the organization is now called ASTM International, and the ASTM do not stand for anything.

2) Shore Hardness is a the result of a testing procedure, so your article would be more proper to refer to it as a “hardness testing standard” and not a “hardness standard”. The latter implies that the material has to meet a certain (minumum/maximum) value or it is not acceptable. The test itself does not pass any such judgment, but merely discusses how the testing is done. It is up to the user to decide on the merit of the material after the test is done.

In fact, most ASTM standards (and even ISO standards, SAE standards…) are standards for testing procedures and as such, they do not set speciications for what values are acceptable. I’ve seen many lawyers make this mistake, so I do think it is important to clarify this. From a science and engineering point of view, it is extremely important that everyone is following the same test procedures so that true comparisons of the results can be made.

I stand corrected. The better way to have said what I was trying to say is: “There is absolutely no way claim 5 can be obvious and claim 4 valid.”

Correction to the article has been made and noted at the top. Thanks for your input.

-Gene

There are indeed juries in patent cases. The Seventh Amendment guarantees the right to a jury trial, which can be waived and frequently is in patent matters.

Take a look at Markman v. Westview:
http://www.law.cornell.edu/supct/html/95-26.ZO.html

Best of luck on your exam.

-Gene

Good timing on the article as I am reading it while studying for my first civil procedure exam. I understand that, as there is a genuine issue as to material fact (Rule 56), summary judgment was not appropriate. However, I am confused as to why there was a jury trial in this case to begin with. Per Rule 38, the right to a jury trial is preserved, unless provided by Federal Statute. It is my understanding that Patent infringement matters weren’t entitled to a jury trial.

Additionally, the test for a jury trial requires that the case would have been decided in the Court of Equity prior to the merger of the Courts of Law and Equity. As the Court of Equity handles injuctive relief and there was no jury trial, it doesn’t make sense to me that there was a jury in this trial.

Can you tell me where I am getting confused?

Thanks for your help,

Scott

Claim 2: The method of claim 1, wherein the object is a napkin.

Disregarding 101 issues for the moment, Reference X teaches a method of smacking someone on the face with a tissue. Without a doubt, claim 1 is anticipated by Reference X (no lesser case of obviousness required). Claim 2 may be said to be obvious for obvious reasons.

That said, a dependent claim 2 is rendered obvious, while the independent claim is rendered anticipated. What is Gene saying when he stated:

“Those familiar with even basic patent law understand where this is heading.  There is absolutely no way claim 5 can be obvious unless claim 4 is also obvious.  A dependent claim by definition adds something to a claim from which it depends.  Therefore, claim 4 has to be broader than claim 5 in order for claim 5 to be a valid depending claim.  Thus, if claim 5 (i.e., the more specific claim) is obvious, then claim 4 (i.e., the broad claim that captures more embodiments) must also be obvious.”