Erico Int’l v. Vutec & Doc’s Marketing, 2007-1168 (Fed. Cir. 2008)
Claim 17 of Erico’s patent covers a method of supporting communication cables with saddle-hooks so that the sag distance (B) is less than 30 cm. During an earlier reexamination, the PTO cancelled several claims, but the validity of claim 17 was reaffirmed. Doc’s copied Erico’s saddle-hook design (called j-hooks) and follows the patented method in its daily business. Litigation ensued.
During litigation, the district court granted a preliminary injunction against Doc’s — finding that Erico had sufficiently satisfied the traditional four factor test of equitable preliminary relief: (1) patentee’s likely success on the merits; (2) irreparable harm associated with continued infringement; (3) a balance of hardships favoring the patentee; and (4) the public interest favoring preliminary relief.
Preliminary Injunction: For preliminary relief, the first factor is critical. Without showing probable success, a plaintiff has no chance of succeeding on the motion. More to the point, this usually requires proof of infringement of a valid enforceable claim. Here, the lower court considered issues of novelty, obviousness, and inequitable conduct in determining that the asserted claim was likely valid and enforceable.
Substantial Question of Validity: On appeal, the CAFC vacated the PI, finding that the defendant had raised sufficiently “substantial question of invalidity to show that the claims at issue are vulnerable.” According to the divided appellate panel (Judges Rader & Dyk), the threshold substantial question is met when the evidence “cast[s] doubt on the validity” of the asserted claims.
Here, the panel was able to find doubt because of a combination of prior art and their “reasonableness” of combination.
“It is reasonable to see that downwardly flared flanges coupled with the EIA spacing requirements could implicitly motivate a person of ordinary skill to use J-Hooks with the EIA spacing to achieve cable sag of no more than about 30 centimeters. See KSR”
Looking next at secondary considerations of validity, the majority panel found that such considerations cannot overcome the reasonable inference found above.
“Thus, Doc’s invalidity challenge based on obviousness cast enough doubt on the validity of Claim 17 to negate likelihood of success on the merits as to infringement of a valid patent. At this point, of course, Doc’s has only cast doubt on the validity of the ‘994 patent.”
Abuse of Discretion: A preliminary injunction is overturned only for clear error or mistake of law. Consequently, the majority’s holding is not simply a difference of opinion — rather it is a finding that the lower court committed an abuse of discretion by weighing the validity issues in the patentee’s favor.
Preliminary injunctions were difficult to obtain even before the Supreme Court’s decision in EBay and KSR. This decision simply moves the ratchet another half turn.
In Dissent, Judge Newman makes three primary arguments: (1) that preliminary injunctions should be easier to obtain because they preserve the status quo; (2) that the first factor of equitable relief should not determine the outcome (all four factors must be considered); and (3) that, even if the first factor is most important, a defendant simply ‘casting doubt’ on a patent’s validity is not sufficient. Rather, the inquiry should focus on which party is more likely to actually succeed on the merits.
Notes:
- Board Decision: Ex parte Raimond Scott Laughlin, Appeal No. 2002-0244 (heard on May 14, 2002).
- Asserted claim of U.S. Patent No 5,740,994: “17. A method of supporting a run of a bundle of low voltage communication cable, comprising the steps of providing spaced supports, each comprised of a curved saddle having smooth down-turned obtuse angle lateral edges, suspending the run from saddle to saddle, and spacing the saddles along the run so that the run sags between saddles no more than about 30 cm below the saddles.”
Mr Gur, I concede that I havent read the re-ex or the O’Malley, and that one should do that first. Don’t yet know how to get there but I’ll try to figure it out.
Mr. Gur,
One of the remarkable traits of we humans that distinguishes us from all other manner of creatures on earth is that we seem able in many instances to form and ardently espouse opinions with only a modicum of factual information. As we continue along our evolutionary trail I suspect that more and more of us will eventually be able to articulate irrefuteable opionions without any information at all.
Maybe the patent will eventually be confirmed as valid. Perhaps it will not. That is a matter under consideration by both the district court judge, and soon the PTO under the second reexam process. They have or will soon have data necessary to form an informed opinion. Until then the only real issue deserving of discussion on this matter is whether or not the CAFC panel majority has applied the correct legal standard in reviewing “abuse of discretion” in accordance with standing judicial precedent. As Judge Newman aptly notes, the burden of proof deemed by the panel majority as applicable to the defendant in this case falls short of the mark imposed by such precedent.
Max,
The reason the status quo is given great weight is because the balance of harms usually supports the status quo. In this case, the only one who addressed the issue was Judge Newman who concluded that the balance of harms supported issuing a preliminary injunction.
In your third sentence, you do point out exactly the problem with the decision and why I believe Judge Newman’s dissent to be correct. Claim 17 survived examination, a reexamination and review by Judge O’Malley who, apparently, is very experienced in patent law. You must therefore ignore the fact that this seems to be a silly patent and defer to Judge O’Malley’s decision unless there was an “abuse of discretion” which apparently there wasn’t.
As for whether or not the patent is actually silly. It seems that no one who supports the majority decision has read the reexamination or Judge O’Malley’s reasoning.
When considering whether to grant interlocutory injunctive relief, the status quo should be given great weight. Here, the status quo included established use by Doc’s, which should not be disturbed without compelling reasons. When contemplating interlocutory relief, weighing the likelihood of success at full trial is dubious, because (obviously) ONLY after a full trial can a court make a properly informed final decision and dispose of the action justly, and one would not want to pre-empt the issue on less than full evidence.
But this is all bog standard stuff, well-established for most of the last century, isn’t it?
my bad, my above comment makes it look like I was saying this decision was madness, when I meant the opposite, that the system until this decision is madness if they’re just throwing out prempt injuncts based on questionable patents. And, further, that any patent that is questionable would have a premp injunct granted for it is a ludicrous abuse of judgment.
I remember that very issue from my physics class twenty years ago. Calculate the sag distance for a telephone wire (communication cables) between two towers (saddle-hooks). It weren’t no 30 cm, but sag distance is nothing new.
— in case of doubt, reject, reject, reject —
MaxDrei, do you work at the USPTO?
Look. there’s nothing “mad” about stuff getting through the PTO that later gets found obvious by the court. What’s the alternative: in case of doubt, reject, reject, reject. Seriously? That way lies throwing out the nuggets of gold along with the mountain of dross, before they have a chance to shine. Come on. Reality is that a modicum of dodgy stuff will get to issue. No matter, IF it gets exposed as worthless under the spotlight of impending litigation. At that point, you need a mechanism (loser pays? Darth Rader?) to prevent fatuous dross being asserted all the way to the CAFC.
Yes appparently it is, this is the madness of our current patent system at work. Sure, there are reasons to hold the “status quo” but holding the wrong status quo is the wrong thing to do.
It seems like this is a pretty common sense opinion. If there is doubt about the patent being asserted, why should an injunction be granted?
Is this really the first opinion to state this holding??
“…since Rich left the Bench”. Didn’t Judge Rich die while still sitting, and at the time of his death was the longest sitting judge in any Federal court?
(You’re right about Newman.)
“My position on Newman’s opinions (I only know of one case she ever got right) is well-documented on this site.”
Wow. You couldn’t be more incorrect. Newman has had the most consistently correct and thoughtful opinions since Rich left the Bench.
Alan,
There isn’t any jurisdictional problem here. It’s just a matter of when an “abuse of discretion” occurs, which may be either due to applying the wrong legal standard, applying the correct legal standard incorrectly, or just simply “blowing” the finding of fact and/or ultimate conclusion almost “beyond a reasonable doubt.” The “abuse of discretion” standard is, I believe, the most difficult to show, and is why advocates often “jockey” to make their criticial issue (or issues) be an “question of law” (like claim construction is now) if they want to get reversal from the Federal Circuit. For a “question of law” the review standard is “de novo” which is probably the easiest to get over.
Was there any way the CAFC could have just decided at this point that this patent is invalid based on the prior art of record and put the case to bed? Unless I’m reading the tea leaves wrong this is where they’re headed eventually. I’m not seeing the “maybe this case is not so simple” issue.
Or is there a jurisdictional issue that would prohibit this?
I’m with BigGuy and Erez Gur on this. And Newman is absolutely right on what is the most important issue here, namely upholding the proper standard for “abuse of discretion”. The majority panel opinion reflects “an end justifies the means” attitude, and that’s a very slippery slope to go down.
As BigGuy also suggested, may be this case wasn’t as straightforward as it might appear. That means you give the benefit of the doubt to the district court judge who is looking at the record first hand, namely O’Malley (who I would definitely give the benefit of the doubt with her experience level and patent savvyness). BTW, I would much rather have O’Malley (and definitely Newman) as a Federal Circuit judge, than Moore.
Alan, re 7:12 posting
The reasons Judge Newman gave where balance of harms and the fact that the District Court judge made his seemingly strange decision after careful study of all the factors and not the superficial review made by the CAFC.
Maybe the case is not as simple as it looks.
An interesting point from a practitioner’s viewpoint is that Erico would have been better served by filing for a design patent rather than a utility patent.
“Score one for Judge Newman for holding her natural inclination to strangle this patent in check and saying to the boys, wait until after the trial to overrule the district court”
If the CAFC already knows that patent should be found invalid, do you really want to keep an injunction in place that could lead to a settlement where the patent isn’t litigated to conclusion? Why should a bad District Court decision be affirmed now when it’s going to be overturned later?
“Excessive hyperbole makes me a little suspicious about the gender bias issue again…”
Not at all.
I almost never agree with Stevens or Breyer at the Supreme Court and would oppose anyone who shares their judgments.
I’m basing my position solely on decisions.
Right result – patent is crap, and should be found invalid – but completely wrong process. Score one for Judge Newman for holding her natural inclination to strangle this patent in check and saying to the boys, wait until after the trial to overrule the district court, if the DC finds the patent valid. Rader usually gets things right but he blew it here. The evil is the newly-enunciated “casts doubt on the validity” standard – that’s a low bar, especially against a document that by statute is supposed to enjoy a presumption of validity.
Mr. Mooney,
Re your comment re my comment about “butressing”, mine was a mere observation, and not based upon any legal rule.
I am curious who requested the first reexam, the patentee or a third party?
“My comment is based on the record, not on gender.”
I’ll take your word for that. However, since this appears to be the first time you’ve heard of O’Malley (she has sat by designation on several CAFC panels), you might want to take a more detailed look at her record before jumping to any conclusions. The fact that Judge Newman would have affirmed, under an abuse-of-discretion standard, hardly suggests identical thinking, or even general agreement, between the two.
“I only know of one case she [Newman] ever got right.”
With all due respect, that probably says more about your knowledge than it does about her record. Surely she’s been right at least a few times. Excessive hyperbole makes me a little suspicious about the gender bias issue again…
“Is there anything behind this comment other than blatant sexism?”
Not at all. My comment is based on the record, not on gender.
My position on Newman’s opinions (I only know of one case she ever got right) is well-documented on this site.
My fear is 1) if she and O’Malley are in agreement on patent issues, and 2) O’Malley is considered a CAFC candidate, then 3) we are in for another bad judge on the CAFC who is supposedly patent knowledgeable, which is the last thing we need. It would have been no different if she was a he. I would oppose ANYONE who thinks like Newman.
“The second reexam is listed as 90005606 in the decision. Public records based on this number show the defendant law firm filed it.”
Interesting. They must be confident because the patentee would be beating them over the head with a denied request, had things worked out that way.
“Interesting narrative, except that’s not what happened here. Rather, the second reexam caused the court to view VALIDITY with a more skeptical eye.”
Well, yes, partly because the PTO accepted the request for a facially compelling reason. In my “narrative” I was referring to a *completed* “successful” reexam that resulted in issued claims (e.g., the first reexam in this case).
“Looked her up, Clinton appointment, possible future CAFC candidate. Please God, no. Another Newman in the making.”
Is there anything behind this comment other than blatant sexism?
Just curious…
Malcom
“Who requested the second re-exam?”
The second reexam is listed as 90005606 in the decision. Public records based on this number show the defendant law firm filed it.
“An ex parte reexam changes nothing… EXCEPT that it causes a very very tiny subset of invalidity arguments…to be viewed with a somewhat more skeptical eye.”
Interesting narrative, except that’s not what happened here. Rather, the second reexam caused the court to view VALIDITY with a more skeptical eye. The court stated “In granting the second reexamination, the PTO stated….[t]hus, the PTO cast doubt on the District Court’s finding….”
On re-reading the decision, I am confirmed in my view that this was not a tightly drafted patent, and that the CAFC was right to cut the defendants some slack.
Judge Newman’s dissents always deserve respect, but in this case it is arguable that her dissent is not in a deserving cause. Interim injunctions should not be granted to restrain infringement of weak patents and this is one of them. So reluctantly (because I respect Judge Newman) I go for the majority opinion.
“First off, O’Malley is a she, not a he.”
Sorry about that. Looked her up, Clinton appointment, possible future CAFC candidate.
Please God, no. Another Newman in the making.
“An ex parte reexam changes nothing EXCEPT that it causes a very very tiny subset of invalidity arguments (i.e., the *identical* arguments over the *identical* art cited during reexam) to be viewed with a somewhat more skeptical eye.”
Any presumption that the PTO did its job correctly died with the statutory overrule of Portola Packaging.
Sad. But true.
Some Examiner wrote: “Thus, the attorney made a big stink about 30 cm or less and got his way. The big stink probably entailed calling the examiners SPE and them all having a discussion.”
What the hell patent office do you work in?
Surely not the PTO.
What probably happened is the Examiner checked the calendar and saw that he was few counts short the required amount and only had 2 days to get them in.
He scoured his docket, but there were no low hanging RCEs or continuations.
He sorted through a few cases until he found one that had a set of claims that he could allow that didn’t have any outrageously broad claims in it.
He then issued the NOA and got the count.
How ridiculous to suggest that an attorney calling up and b1tching at everybody is going to result in an allowance.
“The patentee does enjoy a presumption of validity. The first reexamination further butresses this presumption. ”
No, it doesn’t. The presumption is the same. The presumption puts the burden on the defendant to provide clear and convincing evidence of invalidity. That is the effect of the presumption. An ex parte reexam changes nothing EXCEPT that it causes a very very tiny subset of invalidity arguments (i.e., the *identical* arguments over the *identical* art cited during reexam) to be viewed with a somewhat more skeptical eye.
But that’s all. You might be able to convince a jury that re-exams makes a patent “better” but good luck convincing the CAFC or an intelligent judge.
“What appears to me to have been an important factor in the panel majority’s decision is that a second reexam has been ordered”
Who requested the second re-exam?
“What appears to me to have been an important factor in the panel majority’s decision is that a second reexam has been ordered”
I agree that the ordering of a second reexam shouldn’t be given much weight, but in this case, the basis for the second reexam seems to directly undercut the district court’s reasoning. In particular, the district court believed that one of the references the defendant was using had been previously before the office, while the PTO in granting the reexam explicitly stated that the reference had not been considered by the Office.
“I really do not understand why people have such hang-ups about this decision.”
hahaha. I get it.
Very plainly this is not a decision that hangs on a single point.
MPEP Section 2242, Para. I provides in pertinent part:
“A prior art patent or printed publication raises a substantial question of patentability where there is a substantial likelihood that a reasonable examiner would consider the prior art patent or printed publication important in deciding whether or not the claim is patentable…”
Please correct me if I am wrong, but the above standard for what comprises a “substantial question of patentability” is no more than the citation in a reexamination request of a “publication” that is deemed by the office to be “material”. Of course, many publications are deemed material that upon further consideration/examination/reflection fall short of the mark.
Likewise correct me if I have missed an important point, but a district court has the discretion to stay or continue proceedings in a contested matter involving a patent that is undergoing or will undergo reexamination.
What appears to me to have been an important factor in the panel majority’s decision is that a second reexam has been ordered, and this signified to the judges that a “substantial question of patentability” has been administratively determined. From this the panel majority extrapolates that the patentee’s burden of proof for demonstrating “likelihood of success on the merits”, which the district agreed had been met, was successfully rebutted by the mere showing that a reexam has been declared. What is troubling is that until the second reexam is concluded, and assuming that a decision is rendered declaring the claim at issue unpatentable, the most that can be said about the alleged infringer’s position is that it falls far short of demostrating a reasonable likelihood that the current patent claim will not survive reexamination. Likewise, this ignores the fact that claims can be amended during reexam, and that such an amended claims, if amendment is even deemed necessary, can still retain scope sufficient for a patentee too continue and press its action against the alleged infringer.
The patentee does enjoy a presumption of validity. The first reexamination further butresses this presumption. Apparently the panel majority subcribes to the view that an outcome that may or may not happen trumps all activity to date sustaining validity. Judge Newman recognizes the error of what the majority has propounded, and her dissent takes the majority to task for a cardinal change to hitherto standards for the respective burdens of proof incumbent upon both parties on the issue of “likelihood of success.”
No disrespect to those who believe the panel majority has acted appropriately, I am of the opinion that Judge Newman correctly articulates governing precedent and that the decision by the district court can not reasonably be characterized as an abuse of discretion given the purely speculative nature of the alleged infringer’s “proof”.
I really do not understand why people have such hang-ups about this decision.
Looking in from the outside, and trying to decide between the c0ck-up theory of history and the conspiracy theory, one wonders whether, every time the CAFC gets a suitable case, it proceeds to allocate tasks to each judge, with the aim of arriving at a split decision, to stimulate the watchers into a consensus that the broken system needs mending.
Let’s all give some credit to Doc’s Marketing and their attorneys here. Many other defendants might very well have drunk the “re-exam makes patents bulletproof” kool-aid and folded immmediately. Doc’s Marketing pressed on because they knew the PTO had effed up.
Good for them.
“So much for the statutory presumption of validity”
No, my friend. It’s still there. The burden was on the defendent here to provide clear and convincing evidence of invalidity.
The CAFC evidently believes that such evidence exists and the arguments are likely to succeed.
“Second, she demands that the CAFC follow the law”
Right, even if you have to make it up as you go along like she recently did with her “claims should be read to cover all the embodiments in the application unless there is evidence to the contrary” baloney.
The majority followed the law in this case. They looked at the likelihood of success on the merits and they found it reasonable to doubt that the patentee would win. No injunction. What’s the problem?
“During an earlier reexamination, the PTO cancelled several claims”
BWAHAHAHAAHAHAH!!!!!! So much for re-examined patents being extra tough.
As it should be.
Did Newman really argue that “even if the first factor is most important, a defendant simply ‘casting doubt’ on a patent’s validity is not sufficient”? Cuz that’s wacky. If a patent’s validity is dubious, the patentee is not likely to win the case. Injunction denied.
The PTO reached a final disposition that claim 17 was valid, *twice* (including reexam), and yet for the lower court to find this the likely outcome of litigation, is supposed to be abuse of discretion?!
Apparently the majority doesn’t regard deference to the lower court *or* to the PTO as anything more than “did they happen to reach the same conclusion that we do now”.
“Perhaps the majority knows what they will do with the next appeal in this case and is sending a message to O’Malley that he better hold the patent invalid or he is going to get reversed again.”
Alan,
First off, O’Malley is a she, not a he. Also, she isn’t some rube who can be manipulated here by skillful trial counsel. I’ve heard her speak and she knows what she’s doing.
In fact, rather then sending a good message, this Federal Circuit panel, instead, sends a very bad message that, as in the claim construction area, we (the Federal Circuit) will reverse you simply because we don’t like the result. That’s not applying an “abuse of discretion” standard at all which is what was supposed to apply here.
Judge Newman’s dissent just makes so much more sense than the holding.
“Casting doubt” on the validity is way too low a bar for likelihood of success on the merits.
“It is reasonable to see” the combination is a lazy and insufficient 103 argument even under KSR.
And even if the majority disagreed with the lower court, there is no way this was abuse of discretion — this majority’s decision leaves no definition left for “abuse of discretion” other than “the lower court happened not to reach the same conclusion that we did”.
I would have expected better from Judge Rader.
If the CAFC is worth its salt, it’ll overturn this en banc. Not holding my breath though.
I’ll take a wild stab at why it was patentable. The office didn’t have the EIA spacing req’s and thus couldn’t use them in a rejection, or in the alternative, it was not apparent just from the EIA specs considered in the vacuum of an examiners office that the sag would necessarily be 30 cm or less. Thus, the attorney made a big stink about 30 cm or less and got his way. The big stink probably entailed calling the examiners SPE and them all having a discussion.
In other words, routine.
Things like this is why I marveled at the horrendous system in place before KSR and how it was ever tolerated.
Is there anything more to this patent other than putting more hooks in there to lower the distance between supports, or to tighten the slack in the line? How is this patentable?
Another thought.
Perhaps the majority knows what they will do with the next appeal in this case and is sending a message to O’Malley that he better hold the patent invalid or he is going to get reversed again.
This case is quite strange.
The majority seemingly made a correct decision based on Laughlin’s testimony (decision, page 9-10) which more or less admits that claim 17 is not novel.
On the other hand, Judge Newman’s dissent is based on three factors:
> admission of copying after agreeing not to (decision, page 4, first paragraph)
> respect for the district court which studied this seemingly simple case carefully (dissent, page 2, last paragraph)
> the balance of harms (dissent, page 7, penultimate paragraph)
I think that in this case Judge Newman was right.
First, she agrees with the district court that an infringer should be punished when choosing to act dishonestly.
Second, she demands that the CAFC follow the law rather than whim. She recognizes that the rule and predictability of law is more important than the sale of a few J-hooks.
Hello, Newman! You messed up again.
How does shutting down competition “maintain the status quo”?
Maintaining the status quo is leaving things as they are until there is a final decision.
Making preliminary injunctions harder is another way to fight the trolls.
And that’s a good thing.
As you say, PatentSoldier. From the patent:
Col 1, line 44 (Prior Art section) “Such cable should not …..sag excessively….”
col 2, line 66 “The spacing is such that excessive sag between supports is avoided”
Col 3, , lines 1-3 “J-supports can be placed within about 120 to 150 cm of each other to avoid an intersaddle sag of more than about 30 cm”.
And STILL claim 17 got through re-exam. The CAFC chose the right word in “survived”. My mind boggles.
“Abuse of discretion has not been shown in the district court’s consideration and weighing of the relevant factors at this preliminary stage.” Boy is Judge Newman ever so right in saying this. I’m astounded that the majority panel opinion (by Judge Rader) would vacate the district court’s PI on this record. The judge who granted this PI is not some inexperienced, patent unsavvy judge who can be duped by the trial attorneys. Instead, Judge O’Malley is a highly experienced district court judge, who, if I recall correctly, is a former patent attorney. If someone with Judge O’Malley’s experience can be “second-guessed” by the Federal Circuit on the grant of a PI motion (especially on a validity issue that O’Malley would definitely know better than most district court judges), that doesn’t bode well for any grant of a PI being upheld. If I were the patentee here, I would definitely consider requesting a rehearing en banc because this majority panel decision appears to be itself “abitrary and capricious.”
Max, KSR provided a hook for them to reevaluate all that happened before. Let’s also be fair here, numerous claims were canceled during the reexam, apparently only one claim survived. This patent was on life support.
::gulp:: I gotta agree with Pauline the Queen on this one. The majority should have at least addressed the other factors of the test instead of hinging everything on liklihood to prevail on the merits. Even the DC’s merits analysis didn’t seem like a flagrant abuse of discretion, as it uses the correct analysis and authority (albiet reaches a questionable conclusion on obviousness).
Never mind KSR, what about the absent features needed, to make any sense of claim 17. Like the spacing between the J hooks (2 inches or twenty yards) like the diameter of the cable (a cm, an inch, a foot or a yard).
Think about it. A sag of <30 cm between two hooks 100 yards apart corresponds to a ping-tight cable, regardless of cable diameter. A sag of 30 cm between two hooks 10 cm apart isn't even possible, for a fat cable. So, what's the "contribution" to the technical field, that magically appears, once you get the sag below 30cm?
Was everybody prior to the claim fastidiously ensuring that the sag always exceeded 30 cm? Why, for goodness' sake?
What sort of a re-exam calls that a claim deserving of a 20 year monopoly.
No wonder there is no patent family member anywhere outside the USA.
KSR happened and changed the landscape under Erico’s feet.
Go Pauline!
There is a public policy objective, of encouraging humans to take responsibility for their own actions. The pragmatic CAFC majority is bent on fostering that objective, signalling to Applicants that, when the hurly-burly’s done, when the battle’s lost and won, those who bully cr8p claims through the PTO will be the ones ending up in tears. Before the courts, the paucity of patentable subject matter embraced by such claims is going to get exposed, recognised and smacked down.
Actually, in the absence of a “loser Pays” principle, USA needs something like this, to create a system of adjudicating patent disputes that holds as its “over-riding objective” the task of “disposing of cases justly”.
Newman CJ holds to a more purist legal line, putting her trust in the legislature to fix the problem. Maybe not pragmatic, but displaying more rectitude perhaps.
Wouldn’t it be nice, if somebody could invent a universal obviousness “filter” that is used consistently and dispassionately by BOTH the USPTO and the courts? Which reminds me, I must see what happened to the here-asserted claim in the EPO. Educational it is, to reflect on the fate in the EPO of the claim asserted in KSR. Died at the first Office Action, if my memory serves.
So much for the statutory presumption of validity, and for the strengthening effect of surviving reexamination! Next up: CAFC sua sponte invalidity (otherwise known as patent spontaneous combustion!)
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