« No Noise Reduction | Main | Cartoon Comprehension »
February 19, 2009
First to Fail
The
great anachronism of the U.S. patent system arises with interferences, a natural
outgrowth of making priority a mystery by having a first-to-invent regime,
rather than the tidier first-to-file, adopted worldwide, everywhere but this
backwater too proudly called "the good ole US of A." Herein, a priority date squabble over collapsible pet carriers
that aren't patentable anyway, as KSR kicks them out of the doghouse and
buries them in the graveyard.
Scott Pivonka and John Tottleben v. Glenn Axelrod and Walter Lee (CAFC 2008-1413) non-precedential
Glenn Axelrod and Walter Lee, struggling to get a patent for their 2001 filing for a collapsible pet carrier, provoked an interference with similarly claimed 6,408,797.
Axelrod positioned himself as senior party, the pole position for such a race. His claim was a bit shaky, incorrectly relying on two prior applications, but he shored those up to the Board's approval.
Axelrod then boxed '797 for invalidity with 4,940,016 (Heath) and 3,195,506 (Beard), a remarkably similar compartment. The Board waved that away, instead formulating its own invalidity position, which did '797 in.
Pivonka appealed. A lot of waiving went on.
We conclude that Pivonka waived his objections to the Board's decision to proceed with the interference... Similarly, we find that Pivonka waived his objection to the Board's decision that the evidence submitted by Axelrod was sufficient to satisfy 37 C.F.R. ยง 41.202(e)... We also conclude that, before the Board, Pivonka waived any argument that claims 2-9 do not stand or fall with claim 1.
Kaput.
Finally, we agree with the Board that claims 1-9 are obvious in light of Heath, Beard, and U.S. Patent No. 5,465,686 ("Monetti").
The first affidavit of Axelrod's expert, Dr. Shina, provides substantial evidence to support the Board's finding that ordinary skill in the pertinent art consists of knowledge of basic mechanical principles, including knowledge of the relative movement of parts and hinges, and "experience and training in moving panels and hinges, made of different materials." First Obviousness Opinion at 14; see also J.A. 237-38.
Under KSR International Co. v. Teleflex, Inc. "[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." 550 U.S. 398, 1739 (2007). According to Dr. Shina's unrebutted affidavit, both the structural benefits and the way in which to build the container claimed by Pivonka were readily apparent to a person of ordinary skill in the art. Accordingly, we find no error in the Board's conclusion that claims 1-9 are obvious.
Affirmed.
Posted by Patent Hawk at February 19, 2009 5:14 PM | Interference