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In its first application of the Supreme Court`s obviousness pronouncement in KSR v. Teleflex, the Court of Appeals for the Federal Circuit (CAFC) affirmed a finding of obviousness in Leapfrog v. Fisher-Price.

Leapfrog and Fisher-Price are competitors in the toy market.  leapfrog sued Fisher-Price for patent infringement. The trial court found the leapfrog patent not-infringed and invalid as obvious.  On appeal, the CAFC affirmed.  The CAFC said that the obviousness analysis requires a common sense approach rather than any rigid formula.

“An obviousness determination is not the result of a rigid formula disassociated from the consideration of the facts of a case. Indeed, the common sense of those skilled in the art demonstrates why some combinations would have been obvious where others would not. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. __ (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”).”

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James Lindon, Ph.D. Patent Attorney
Lindon & Lindon, LLC
Cleveland, Ohio
Patents, Trademarks, Copyrights, Pharmacy Law, Litigation
[this is not legal advice - provided for discussion only]
Intellectual Property for the Individual and Small Business: Identify, Protect, Enforce, Defend.
"Fools rush in where angels fear to tread."
http://www.LindonLaw.com

I think this is an example of how the US body of law is on a slippery slope of downward movement.

It may have started with the pornography laws, leaving the legal definition to some sort of subjective consensus. This finding shows another abandonment of definition. The Law is supposed to define things on an objective and formula-type of system.

Fingerprints have "points of comparison," right? So what does "obvious" mean, to the law, how is it defined, and why can`t it be made into a formula? I think it can, and I believe the CAFC failed.

What was the product?

kindly offer a proposed definition of obviousness for patent law.  i agree that any legal test that relies on `common sense` is going to be very wishy washy.  if a case really was so much `common sense` it would not be in court in the first place.

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James Lindon, Ph.D. Patent Attorney
Lindon & Lindon, LLC
Cleveland, Ohio
Patents, Trademarks, Copyrights, Pharmacy Law, Litigation
[this is not legal advice - provided for discussion only]
Intellectual Property for the Individual and Small Business: Identify, Protect, Enforce, Defend.
"Fools rush in where angels fear to tread."
http://www.LindonLaw.com

here`s what was written about the product:

"The accused PowerTouch device consists of a hinged plastic housing containing electronics and a speaker that opens to lie flat. When so opened, a user places a book made for use with the device in a rectangular recess in the housing. The books contain large, colorful pictures that also show words associated with the objects shown in those pictures. The user may select one of multiple modes of operation. In phonics mode, when the user touches one of the words on the page, the device pronounces the word, then pronounces each phoneme of the word in sequence, and finally pronounces the entire word again. The device relies on a grid of "crosspoints" located in the area underneath where the books are placed to detect the location on the page being touched by the user. The processor in the device may be programmed to associate a particular response with each crosspoint. Some of the words on the pages of the books are large enough that each letter of the word corresponds to a separate crosspoint. However, the phonics mode operates in the same manner for those words, with pronunciation of the word, the phonemes, and the word again, regardless which letter the user touches because each letter has been associated with the same response in the device`s programming."

it sounds like some book reading teaching device.

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James Lindon, Ph.D. Patent Attorney
Lindon & Lindon, LLC
Cleveland, Ohio
Patents, Trademarks, Copyrights, Pharmacy Law, Litigation
[this is not legal advice - provided for discussion only]
Intellectual Property for the Individual and Small Business: Identify, Protect, Enforce, Defend.
"Fools rush in where angels fear to tread."
http://www.LindonLaw.com

It`s a LeapPad, and that seems pretty damn obvious to me.
I can`t believe that didn`t hold up in court.

I think "obvious" is a measure, not an attribute, nor an entity. For something to be obvious (self-evident), it must apply to the senses. In other words, what is obvious is a measure of points of similarity, perceived through the physical senses.

To be obvious means that a mind draws a conclusion based on another measure of "ordinary," "average," "median," "typical," or "normal."

Obvious-ness means that one person counts the points of similarity, finding *some number* (to be assigned) within the common set of the comparisons. Further, that person then compares with "others" not only the points of similarity in two entities, but also their own and others` capacity to understand sets.

I think that to form a legal definition of "obvious" is the wrong way to go. Instead, the problem is to define "points of similarity."

We don`t "define" a measure. We formulate a "standard" for that measure. So we don`t define an "inch." Instead, we have a standard length that the world agrees will henceforth be named "inch."

Going further, the definition of a "meter" began as a division of the distance between the equator and the North pole. It now is a portion of length defined by the spectrographic light radiation of a specific element.

The law must assume a level of education, either in those who are accountable to the law, or those who intercede, or those who enforce the law. "Set" knowledge and information is well-understood in mathematics. Those mathematics are an ordinary part of the world in which we live.

Therefore, I would say that the legal definition of "points of similarity" can be formulated by working with a committee of mathematicians. This isn`t strange, given that the same concept (precedent) applies to fingerprinting, DNA comparision, and other such examples of points of similarity.

Those points of similarity are used routinely by the first-tier sorting done in, say, the Patent Office. The only reason "obvious" enters the picture is that the points of similarity might be restricted to those percievable by the unaided senses.

If something is obvious it is not patentable.  Are you saying the innovations found in leapPad are not patentable?

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James Lindon, Ph.D. Patent Attorney
Lindon & Lindon, LLC
Cleveland, Ohio
Patents, Trademarks, Copyrights, Pharmacy Law, Litigation
[this is not legal advice - provided for discussion only]
Intellectual Property for the Individual and Small Business: Identify, Protect, Enforce, Defend.
"Fools rush in where angels fear to tread."
http://www.LindonLaw.com

Obviousness IS defined as points of similarity.  If the points of similarity between the claim and the prior art are such that "the combination of familiar elements according to known methods is likely to do no more than yield predictable results," then the claimed invention is obvious.  i.e. the points of similarity are too similar to what we already know how to do.

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James Lindon, Ph.D. Patent Attorney
Lindon & Lindon, LLC
Cleveland, Ohio
Patents, Trademarks, Copyrights, Pharmacy Law, Litigation
[this is not legal advice - provided for discussion only]
Intellectual Property for the Individual and Small Business: Identify, Protect, Enforce, Defend.
"Fools rush in where angels fear to tread."
http://www.LindonLaw.com

OK well I know nothing about how you`re determining this.

I`m just wondering how the LeapPad`s patent didn`t hold up in court. Can ou explain?