Obviousness for Design Patents

One standard of obviousness is whether a person having ordinary skill in the art would have been able to easily conceive of this idea, given the prior inventions in the field. With regards to design, however, there is a great deal of creativity and inspiration involved in the process. So even if a design is extremely simple in hindsight, how can a court deem that this unique artistic design is obvious?

It was this exact confusion that the Federal Circuit court clarified in their decision last October in the case of High Point Designs v. Buyers Direct.  Both these companies manufacture fuzzy slipper socks, and a conflict occurred on similarities between their products. The district court determined that obviousness ought to be decided through the eyes of an ordinary observer, and claimed that the differences in design were extremely minute to an ordinary observer. However, the Federal Circuit court clarified that it should not be through the eyes of an ordinary observer, but rather of an ordinary designer. Since a designer is one qualified in determining the "visual impression" created by a product design, he or she should be the ones consulted in figuring out whether this design is obvious and whether a similarly designed product is violating the patent.

Design patents bring up an extremely interesting issue regarding patent legislation. Can creative works, whether in design or fashion, be patented? If they can be, how can it be determined that a design is unique or obvious?


Sources:
- http://www.lexology.com/library/detail.aspx?g=72280f98-dbdd-46ad-ad29-8190de373a8e
- http://patentlyo.com/patent/2013/09/high-point-v-buyers-direct-tell-me-more-tell-me-more-about-design-patents-and-103.html

Alice v CLS Bank: Potential to change patents forever?

The Supreme Court is expected to issue a ruling soon regarding a case put forth by Alice Corp against CLS Bank for violation of 4 software patents. These patents were with regards to a software implemented solution to a financial problem -- the issue was that this solution was already being used by hand, and Alice's patent merely detailed the implementation of this solution on a computer. The Supreme Court may therefore be making a broad ruling on what types of software solutions can be considered "patent-eligible," which would have a huge impact on patent laws in the future, considering the popularity of software innovations.

This case has been hotly debated in the lower courts, with decisions going back and forth from appeal to appeal. Ultimately, the Court of Appeals for the Federal Circuit issued an extremely split decision, in which no majority was reached regarding a standard to determine software patent eligibility. The majority of the judges did agree that Alice Corp's patents were invalid, but every judge had a different reason for their decision. Since many of these justifications were incompatible, Chief Judge Rader lamented this case as "the greatest failure in my judicial career."

In the Supreme Court's hearing on Monday, March 31st, it was clear from the start that Alice Corp was not at an advantage. The obviousness of Alice Corp's patent was heavily questioned, and the issue became whether merely implementing an already known method on a computer can be considered patent-eligible.

The issue of patent-eligibility for software-implemented solutions is an extremely interesting one. On one hand, it is merely translating an already known idea into software, but on the other hand, that does give the tool more utility and more potential applications.

Source:
- Great article -- I highly recommend everyone read this: http://www.wired.co.uk/news/archive/2014-04/04/alice-v-cls-bank-patent-case
- http://www.scotusblog.com/case-files/cases/alice-corporation-pty-ltd-v-cls-bank-international/

Can pharmaceuticals be obvious?

In the pharmaceutical industry, major companies usually spend thousands of dollars developing a drug, only to be copied by generic brands and undersold. Usually patents protect these market giants (at least for some time), but sometimes, generic companies use the claim of "obviousness" to invalidate a patent. It is up the judges at this point to determine if they think the drug is actually obvious to someone skilled in the field.

This is exemplified by a recent ruling in a federal court, where a judge ruled in favor of pharmaceutical company Eli Lilly, determining that the defense gave insufficient proof that Lilly's drug was "obvious to a person skilled in oncology or nutrition." This specific patent "covers the method of administering Alimta[, the drug in question,] with folic acid and vitamin B12, which have been shown to reduce the incidence of side effects of Alimta, such as low counts of white blood cells." The argument made by Eli Lilly that ultimately persuaded the judge was the discovery that this drug should be combined with vitamins in this specific way was pivotal to the continuation of this drug on the market, since previously, it was plagued with side effects.

As a result of this court ruling, Eli Lilly now has a valid patent over this mechanism of administering Alimta until 2022, instead of 2017 if they had lost. Ultimately, generics will still end up copying the drug, though this extra 5 years will give Lilly a great deal of additional profits.

This is naturally a very controversial issue. Patents are supposed to protectors of innovation and competition, but in this case, those two goals have come into conflict. Ruling in favor of the generics may discourage companies from investing millions into research and development, which is antithetical to the purpose of intellectual property rights. However, ruling in favor of the pharmaceutical corporation protects these oligopolistic giants that control the market and charge outrageous prices for medicine, by conspiring with insurance companies to exploit the common man.

Source: http://online.wsj.com/news/articles/SB10001424052702304157204579474060730302816