“Secondary considerations evidence can establish that â€œan invention appearing to have been obvious in light of the prior art was notâ€ and may be â€œthe most probative and cogent evidence in the record.â€ Transocean, 699 F.3d at 1349 (quoting Stratoflex, Inc. v. Aeroquip Corp., 713 F.3d 1530, 1538 (Fed. Cir. 1983)). This evidence guards against the use of hindsight because it helps â€œturn back the clock and place the claims in the context that led to their invention.â€ Mintz, 679 F.3d at 1378. Apple presented compelling secondary considerations evidence that may have rebutted even a strong showing under the first three Graham factors, and the ITC failed to grapple with it.
For example, Apple presented evidence of industry praise by business publications. Time Magazine hailed the iPhone as the 2007 â€œInvention of the Yearâ€ in part because of the phoneâ€™s touchscreen and its multitouch capabilities. J.A. 7483â€“84. Bloomberg Businessweek issued a 2007 article entitled â€œAppleâ€™s Magic Touch Screen,â€ in which it labeled the â€œsophisticated multipoint touch screenâ€ as â€œ[t]he most impressive feature of the new iPhone.â€ J.A. 7826. Around the same time, Wired Magazine recounted that, after Apple demonstrated the iPhone and its â€œbrilliant screen,â€ an AT&T executive praised the iPhone as â€œthe best device I have ever seen.â€ J.A. 8259 (internal quotation marks omitted). The ITC failed to address this evidence and the record does not appear to contain any contrary evidence.
Apple also presented evidence of copying. The ITC failed to address this evidence as well.
Lastly, Apple presented evidence that the iPhone has achieved a high degree of commercial success. Apple presented financial information that showed that the iPhone and related products received billions in dollars of revenue from 2008 to 2010. J.A. 14184. Apple also presented evidence showing a nexus between the undisputed commercial success of the iPhone and the patented multitouch functionality, namely evidence that Appleâ€™s competitors copied its touchscreen and that those in the industry praised the iPhoneâ€™s multitouch functionality. The ITC did not address any of this evidence.4
For the foregoing reasons, we vacate the ITCâ€™s decision that claim 10 of the â€™607 patent would have been obvious and remand the case for further proceedings.”
You couldn’t make this up. It’s too strange. The law specifically excludes issuing patents for stuff that’s obvious, yet the Federal Circuit in USA want press coverage to be considered instead of prior art… This nonsense is on top of software patents being invalid anyway.