When Is Prior Art Not Prior Art? When The US Federal Circuit Ignores It.

“Secondary considerations evidence can establish that “an invention appearing to have been obvious in light of the prior art was not” and may be “the most probative and cogent evidence in the record.” 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 “turn back the clock and place the claims in the context that led to their invention.” 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 “Invention of the Year” in part because of the phone’s touchscreen and its multitouch capabilities. J.A. 7483–84. Bloomberg Businessweek issued a 2007 article entitled “Apple’s Magic Touch Screen,” in which it labeled the “sophisticated multipoint touch screen” as “[t]he most impressive feature of the new iPhone.” J.A. 7826. Around the same time, Wired Magazine recounted that, after Apple demonstrated the iPhone and its “brilliant screen,” an AT&T executive praised the iPhone as “the best device I have ever seen.” 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 Apple’s competitors copied its touchscreen and that those in the industry praised the iPhone’s multitouch functionality. The ITC did not address any of this evidence.4

For the foregoing reasons, we vacate the ITC’s decision that claim 10 of the ’607 patent would have been obvious and remand the case for further proceedings.”

see Groklaw – Apple, Motorola, ITC – Federal Circuit Remands – The Beat Goes On ~pj.

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.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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One Response to When Is Prior Art Not Prior Art? When The US Federal Circuit Ignores It.

  1. dougman says:

    Your copied our steering wheel and wheel design, so we are going to sue you! – Ford Motor Co. 1913

    See how silly that sounds? It’s that same thing that Apple is doing here. At least M$ is smart about it, they just *threaten* to sue collecting monies for patent extortion.

    Patents for computer software and hardware are stupid, instead of squawking over this and that, just shut-up and innovate. Quit trying to lock-up the market and suck from the cow’s milk.

    There was a time Apple could care less, they just kept on innovating, sadly this timei snow past.

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