The ‘invention requirement’ leaves “every judge practically scot-free to decide this often controlling factor according to his personally philosophy of what inventions should be patented, whether or not he had any competence to do so or any knowledge of the patent system as an operative socioeconomic force.”
No cheating.
So what’s the answer?
It’s a fair presumption that I nailed it.
All I can say with any certainty is that it must have been before 1952
This 101 business reminds me very much of a case that I was involved with where a defendant had raised some very old 6th circuit cases and SCOTUS cases that were pre-1900. They were basically trying to shoehorn into their obviousness case a requirement of a flash of genius or inventiveness element from these old cases. Worst part of the case was trying to convince the judge (we ultimately did) that such an element/test was eliminated when Congress drafted the 1952 patent act and codified 103. To our surprise, there really is no good case law that has made it clear that pre-1952 cases on obviousness are no longer good law. We all know this, but the judge was swayed in the beginning by the defense’s position. The only helpful support for our position came from statements made by Judge Rich and the congressional record.
Long story short. Judges have been trying to impose this type of subjective judicial test for eliminating patents they didn’t want to deal with since before the 20th century. This time I fear that Congress is there only to make things worse on patentees.
I do wonder if I will ever see anything from Ned Heller on this legal point other than glibness and denial.
It is a critical point in understanding patent law and the change enacted by Congress in 1952.
One man’s “invention” is another man’s “obviousness”.
You could not be more wrong – nor have a statement more telling – than here and your perpetual miss of what Congress did in the Act of 1952 (which is what Judge Rich was referring to in the quote provided by Prof. Hricik)
Congress was explicit in its choice NOT to use the term “invention.”
We have had this discussion many times now Ned Heller – when will you learn? When will you accept?
Not sure if you’re saying that tongue-in-cheek or with seriousness. If the latter, please give your license back to the USPTO.
Very good! Could be said today again!
First impression: Judge Rich, 1963-64.
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