Posts Tagged: "secondary consideration"

The Federal Circuit also remanded to the Board further consideration of the undisputed evidence presented by Polaris that its ATVs were a commercial success. Polaris presented undisputed evidence that its vehicles had generated over $1.5 billion in sales since 2007 and that the commercial product was tied to the patent and claims entitling Polaris to a presumption of a nexus. Despite this undisputed evidence the Board still concluded that Polaris failed to prove a nexus, finding Polaris’ evidence conclusory.

The District of Delaware found that one of two patents asserted by Merck was not invalid and infringed, and the other patent, while infringed, was invalid as obvious. Merck appealed the conclusion of invalidity. The Federal Circuit affirmed… If the strongest evidence of nonobviousness are objective indicia, it is critical for the patentee to persuade the finder of fact that all four Graham factors need to be evaluated contemporaneously in making an obviousness determination.

The nonobviousness requirement is a critical element to patentability. In essence, even if the applicant can demonstrate patentable subject matter, utility and novelty, the patent will not issue if the invention is trivial. In order to determine if an invention is trivial it is necessary to see if there was motivation in the prior art to do what the inventor has done, or if there is some reasonable expectation that the combination of elements would achieve a successful result. If the prior art does not explicitly, and with identity of elements, teach the invention, the patent applicant may still be thwarted if there are a number of references that, when combined, would produce the claimed invention.

The patent owner made a successful argument regarding secondary considerations, specifically relating to the success of the bottle cap in the country of Peru, which led in large part to PTAB upholding the validity of the ‘271 patent. A 7 percent increase in market share in that country during a five-year period after the new cap product was released to the Peruvian market led PTAB to find that the market share increase was attributable to the merits of the new product. The petitioner had argued that the use of Peruvian economic data was dismissable evidence but PTAB found that the evidence to support the petitioner’s view was lacking.

The Court found substantial evidence to support the jury’s finding of infringement. While Samsung’s expert offered conflicting testimony, a reasonable jury could have credited Apple’s expert. Thus, there was no error in the district court’s conclusion that substantial evidence supported the jury verdict of infringement… Note that the underlying dispute in this case does not concern design patents that were also asserted against Samsung, and which are currently being reviewed by the Supreme Court.

The Lifefactory patent covering a protective sleeve technology survived a challenge at the Patent Trial and Appeal Board (PTAB) with most of its claims intact. The company announced that 13 of 21 claims in U.S. Patent No. 8579133, titled Protective Sleeves for Containers, were deemed valid as a result of an inter partes review (IPR) filed by Leapfrog Product Development of Chicago, IL. The ‘133 patent is not currently involved in any current litigation as of our August 26th interview with Mabrey. According to Mabrey, the company wanted to wait to see the outcome of the IPR process before deciding on a strategy.