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11.1.14 Invalidity - Obviousness

11.1.14 Invalidity - Obviousness

Name: 11.1.14 Invalidity - Obviousness
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Federal - Jury Instructions - 7th Circuit - Civil

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Multi-State

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US-JURY-7THCIR-11-1-14

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Official Pattern Jury Instructions adopted by Federal 7th Circuit Court. All converted to Word format. Please see the official site for addional information. www.ca7.uscourts.gov/pattern-jury-instructions/pattern-jury.htm 11.1.14 Invalidity — Obviousness is a type of patent invalidity that occurs when a claimed invention is so obvious to a person of ordinary skill in the art that it would have been obvious to make the invention at the time of the application. This invalidity is addressed in the U.S. Patent Act in 35 U.S.C. 103. There are two types of obviousness: (1) obviousness-type double patenting and (2) non-obviousness-type double patenting. In obviousness-type double patenting, the invention is obvious in light of the prior art. In non-obviousness-type double patenting, the invention is not obvious in light of the prior art. The courts consider several factors when determining whether an invention is obvious, including the level of ordinary skill in the art, the scope and content of the prior art, the differences between the prior art and the claimed invention, and the level of predictability of the art.

11.1.14 Invalidity — Obviousness is a type of patent invalidity that occurs when a claimed invention is so obvious to a person of ordinary skill in the art that it would have been obvious to make the invention at the time of the application. This invalidity is addressed in the U.S. Patent Act in 35 U.S.C. 103. There are two types of obviousness: (1) obviousness-type double patenting and (2) non-obviousness-type double patenting. In obviousness-type double patenting, the invention is obvious in light of the prior art. In non-obviousness-type double patenting, the invention is not obvious in light of the prior art. The courts consider several factors when determining whether an invention is obvious, including the level of ordinary skill in the art, the scope and content of the prior art, the differences between the prior art and the claimed invention, and the level of predictability of the art.

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Under the Graham Test, in order to determine whether an invention is obvious in light of the prior art, the following factors are considered: 1) the scope and content of the prior art; 2) the differences between the prior art and the claims (or invention) at issue; 3) the level of ordinary skill in the pertinent art;

Patent obviousness is the idea that if an invention is obvious to either experts or the general public, it cannot be patented. Obviousness is one of the defining factors on how to patent an idea and whether or not an idea or invention is patentable.

One way to show non-obviousness is to perform a patentability search prior to filing a patent application. Such a search should elicit the closest prior art, which will permit us to tell the story of the inventiveness and to prepare the claims of the application in such a way so as to avoid the prior art.

Obviousness is a legal conclusion based on underlying factual inquiries: (1) scope and content of the prior art; (2) level of ordinary skill in the prior art; (3) differences between the claimed invention and the prior art; and (4) objective evidence of nonobviousness (aka ?secondary considerations?) (e.g., failure of

An obviousness rejection is ordinarily based on a disclosure that qualifies as prior art under 35 U.S.C. 102 or pre- 35 U.S.C. 102. If it is established that a disclosure does not qualify as prior art under an appropriate section of 35 U.S.C.

More technically, when an examiner argues that a patent is obvious, this means she can combine references, and allege that a person of ordinary skill would know for example that a hammer is used to hit a nail, so a reference to a hammer and a nail can be combined.

Obviousness is a question of law based on underlying factual inquiries.

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The ultimate determination of whether an invention is or is not obvious is a legal conclusion based on underlying factual inquiries. Complete set of applicable instructions contained in Sections 11.35 U.S.C. § 101 precludes a patentee from obtaining more than one patent on the same invention. Skilled artisans to make and use the full scope of the invention without undue experimentation. The Board complied and cancelled claims 111 finding the claimed quasistreaming method unpatentably obvious. While an IPR petition may be based on either anticipation or obviousness, 35 U.S.C. § 311(b), petitioners pursue obviousness at a much higher rate. In both cases, the generic drug company defendants asserted that the patents were invalid for both lack of enablement and obviousness. An appeal from a first-instance court decision on invalidity (such as an application for revocation) lies to the Full Court of the Federal Court. Iii. The district court found the asserted claims invalid for anticipation and obviousness.

11.1.14 Invalidity - Obviousness

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