SteveParker : 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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A Federal Circuit Lesson on the Structuring of Employment Agreements to Ensure That a Company Owns Its Employees’ Inventions

Stephen Parker | July 25, 2012

Preston v. Marathon Oil Company and Thomas Smith

July 10, 2012

Panel:  Bryson, Dyk and O’Malley.  Opinion by O’Malley.

Summary

In this case, an employee, Yale Preston (“Preston”), executed an employment agreement about one month after starting to work as an employee for Marathon Oil Company (“Marathon”).   Whether or not the execution of an agreement after starting employment requires further consideration beyond “continued employment” varies based on state law.   Here, the Federal Circuit held that no further consideration was required under Wyoming state law and that the employer, Marathon, owned the invention at issue by virtue of the employment agreement.   The Federal Circuit further held that Preston did not breach the employment agreement by failing to later sign a subsequent assignment because the employment agreement included the language “does hereby assign” in relation to future inventions, whereby the invention at issue was assigned to Marathon by the employment agreement regardless of whether the invention was after the execution of the employment agreement.


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