Posts Tagged: "obviousness"

KNOWLES: “We are seeing a strong anti-innovation sentiment in the U.S. not just on the issue of obviousness but also on patent eligibility. We’re seeing a rewriting of patent law through judicial decisions which have draconian effect on the industry that judges have not given full consideration of the larger impact of. And I might go even further to say that judges are not sufficiently trained or authorized to overhaul the patent system through the judiciary. The judiciary is taking over the job of Congress. I think that’s what we are seeing.”

The label “anti-patent” is not meant as a criticism or insult. Instead I mean it is a purely descriptive way that recognizes a distinct and very real viewpoint; one that we have seen periodically throughout history but which is inconsistent with what the Framers believed. Therefore, I disagree with Judge Chen that it is not helpful to recognize that there are Judges on the Federal Circuit who, based on their written decisions, show a tendency to eschew a pro-patent viewpoint.

The consequences of SCOTUS decisions are really severe. The U.S. is no longer a favorable jurisdiction for many biotech patents, medical devices and software. What that’s going to mean is companies are going to move. We’ve known this throughout history. Companies locate where the laws are the best for them. If you’re an innovator you’re going to go where the patent laws are the strongest. And that’s why the U.S. has dominated in these industries. We’re number one in biotech is because of Chakrabarty, which has basically been overruled. Prior to Myriad you would have said the ruling of Chakrabarty was this: if there’s human intervention it’s patent eligible, but now you can’t say that because there was human intervention in Myriad, which they acknowledged, and still the claims were patent ineligible. We know companies will move to jurisdictions with more favorable laws…

Simply stated, strong patent rights are an absolute prerequisite for a high tech economy…. With a steep and significant erosion of patent rights and a horribly uncompetitive corporate tax structure the future for high tech companies in the United States is bleak… The world’s best and strongest patent system combined with good tax policies made the U.S. the dominant force in the world. Now we have an antiquated tax system that ranks us at or near the bottom and many biotechnology and software innovations aren’t patentable, while others are declared obvious de novo. Say it out loud. It makes even less sense when you speak the words.

Without any legitimate statutory precedent or authority the Supreme Court is wrecking the U.S. economy just as sure as snow is white and water is wet. Unfortunately, a terribly divided Federal Circuit is causing their own brand of destruction. We are entering a dark time for patents; one that will have a significant deleterious effect on the U.S. economy…. While the Supreme Court is assaulting patent rights vis-a-vis patent eligibility, the United States Court of Appeals is assaulting patent rights from a different angle — obviousness. The Federal Circuit has long been infatuated with de novo review, which means that they get to do whatever they want and give absolutely no deference to the district court and/or jury, but lately the Federal Circuit has ratcheted it up a notch.

This is just another example of the Federal Circuit substituting its own decision for that of the decision maker at the district court level. It is one thing when the Federal Circuit ignores the factual findings of a district court judge, but an entirely different matter when facts found by a jury are ignored… Sadly, the Federal Circuit, or at least some panels, no longer operate as an appellate court. The Federal Circuit operates as a super-trial court, particularly with respect to obviousness. This is extraordinarily problematic given that the Supreme Court has shown no interested in taking even egregious obviousness decisions for appellate review.

It is absolutely critical to understand that a reference, such as an issued patent or published patent application, does not need to be identical to an invention in order for the reference to qualify as prior art. A reference can be used as prior art for whatever the reference explains. For example, if you design 5-wheel transportation device you are going to have to distinguish all other wheeled transportation devices, regardless of whether they are identical. So if a patent examiner finds a 4-wheeled transportation device that will be used against you as prior art. It will be up to you to explain why your 5-wheel device is not obvious in light of the 4-wheel device. The critical question will be this: Why wouldn’t it have simply been obvious to simply add another wheel?

Seth Waxman, of Wilmer Cutler Pickering Hale and Dorr, a former Solicitor General and Soverain’s lead attorney, says, “Newegg is taking this case seriously and so should the Supreme Court. Newegg’s attempt to reargue the facts only confirms that this case should have gone to the jury.” Waxman says, “The judicial overreach that occurred in this case is not an isolated incident, but rather the acceleration of a trend in the Court of Appeals that presents a broader threat to all who rely on the stability and predictability of the patent system.”