KSR : CAFC Alert

The Non-Obviousness of Obviousness Determinations: Even In Simple Technologies, It Can Be Difficult to Draw a Line in Obviousness Determinations

Stephen Parker | January 9, 2013

C.W. Zumbiel Company, Inc. v. Kappos and Graphic Packaging International, Inc.

December 27, 2012

Panel: Prost, Moore, and Wallach.  Opinion by Wallach.  Dissent byProst.

Summary:

This appeal arises out of an Inter Partes Reexamination before the Board of Patent Appeals and Interferences, the decision.   Both the patentee and the third-party requester appealed the Board’s decision, which indicated that certain claims were obvious and certain claims were nonobvious.   In this case, the Federal Circuit affirmed the Board’s entire decision.  The technology at issue involved a carton for a pack of cans (such as, e.g., soda cans) having a perforated flap portion that is torn and folded down to dispensing the cans.  This case highlights that even in non-complex technologies, it can be difficult to draw a line in obviousness determinations, and how when there are little possible variations in structure, if such variations lead to predictable results obviousness may be found (such as here in, e.g., claim 1), but that when there are little possible variations in structure, if other factors such as teaching away in the art, lack of incentive for such a modification exist, nonobviousness may be found (such as here in, e.g., claim 2).


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KSR Reigned In For A Preliminary Injunction

John Kong | January 18, 2012

Celsis in Vitro, Inc. v Cellzdirect, Inc. and Invitrogen Corp.

January 9, 2012

Panel:  Rader, Gajarsa, and Prost.  Opinion by Rader; Dissent by Gajarsa.

Summary:

While Rader’s majority opinion affirmed the district court’s grant of a preliminary injunction despite defendant’s obviousness challenge, Gajarsa’s dissenting opinion asserts that the majority’s decision disregards the Supreme Court’s KSR flexible guidelines regarding the finding of obviousness in the mere repetition of well-known techniques to achieve a desired result, and in the application of “obvious to try.”  Gajarsa’s dissent also notes that this is a preliminary injunction, and the standard is not whether defendant has shown obviousness by clear and convincing evidence, but rather, whether defendant has shown a “substantial question of invalidity” to defeat a preliminary injunction.  Perhaps, the strongest position for the majority opinion is its consideration of the showing of a “teaching away” in the record, as well as deference given to the district court’s determinations of credibility of the parties’ expert witnesses.


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