c.Just because something is obvious to try doesn't make it obvious. Ex. 100 possible compounds that might work, not obvious which one.4.Secondary Factors and Objective Evidencea.In absence of good affirmative, 2erefactors become especially important. Grahamsuggests it, but doesn't apply it in the case.(A)Federal Circuit: Must look at 2erefor objective evidence.(B)Not perfect, someone will always be first yet this doesn't make invention nonobviousness.b.Objective Factors(A)Commercial success: Inventor's invention sells well, pointing towards nonobviousness (though could just be marketing prowess – pet rock).22
(B)Did others copy you—wouldn't need to if it were obviousness. Still need to show nexus, someone may have copied you merely because lawyer said it was okay.(C)Commercial acquiescence: Was inventor able to license the invention? Must show nexus. Did others invent around the patent?(D)Long-felt need: Was there a long-felt need for the invention?(E)Did inventor receive awards for innovativeness? Did others think that invention couldn't work?(F)Best objective factor: people failed who tried to invent it.c.Nexus:Must demonstrate a nexus between the objective factor and the issue of obviousness.B.Connection to § 1021.Why have § 103? Creates zone around patent where nothing can be patenteda.Idea that obvious improvements are not valuable. However, sometimes obvious improvements can be expensive to develop.b.Way of keeping others from infringing patent.c.Reduces # of patents, eases system.d.More things for someone in future to claim. Idea is small steps aren't patentable, give broad rights.2.103 is more nuanced by requiring that prior art falls into an analogous art category.a.Idea is prior art should be based on standard of person skilled in the art. b.Ex. Popcorn funnel for oil is in different art area than popcorn.c.Includes prior art relevant to the problem you are trying to solve.(A)Ex. Heat dissipation of light bulb, both lighting and heat dissipation are relevant categories of art.(B)Ex. Latches on laptop. 103 category: other portable computers and other latch references.3.103 lets you take prior art references in combination whereas 102 must be single reference.a.In re Winslow: Court argued take 102(b) art, imagine it is hanging on wall in inventor's lab. But that doesn't take into account that there could be a ton of art, that there is value in combining prior art references.b.If prior art teaches NOT to combine things that are combined in the invention, that strengthens inventor's case. Ex. experts say don't use chem X in battery, you did. That shows nonobviousness.C.102(b)/1031.Problema.Foster(A)Want to have the idea of "close enough" in 102(b). That "invention" should mean the exact same thing or something really close.