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Statutory Bar: The Experimental Use Exception 743 It is common in the software industry to release so called “beta-test” versions of software in order to test them. Zeitgeist is prominently marked “Experimental beta test version.” The user does not install any software, simply queries a typical Google search form on the Zeitgeist web page. The interface is clean: there are no terms of use or advertisements to be seen. In August 2014, Google asks you if they can patent the Zeitgeist software. Assume that Zeitgeist is patentable subject matter and that it is otherwise novel and non-obvious. Your answer? b.) Aspirin has long been in the public domain. Bayer, aspirin’s original inventor, has just discovered that taking a baby aspirin every other day reduces the risk of heart attack or stroke. Aspirin has side effects however, often causing gastric upset. Bayer does further experimentation and finds that taking aspirin with milk or food helps to avoid those side effects. It wishes to patent “a method for lowering risk of heart attack and strokes by the use of acetylsalicylic acid [aspirin’s ingredient] in certain doses combined with various gastric protective measures.” For purposes of this hypothetical assume that no-one has ever detected the correlation between aspirin and heart-health before. Is Bayer’s method novel? Does it pass the patentable subject matter test? c.) What are the differences between the requirement of novelty (and, later, nonobviousness) described here in the context of patents and the requirement of originality explained in the copyright context in Feist? Are there constitutional differences?
CHAPTER TWENTY-ONE Non-Obviousness Introduction Non-obviousness is in many ways the heart of the patent system, the place where we draw the most important line between sub-patentable and patentable innovation. As you learned in the previous chapter, lack of novelty—or “anticipation”—is a complete bar to patentability. Yet as we saw in that chapter, for an invention to be anticipated, every element of it needs to be present in a single prior art reference. The person alleging anticipation is effectively saying “we’ve already got it” and the “it” is a single thing. Obviousness is different. The person alleging that an invention is obvious is not necessarily saying it already exists. She is saying that it consists of a trivial recombination of elements of the prior art, that a Person Having Ordinary Skill in The Art (or PHOSITA) would have been able to make the leap from those prior art references to come up with the new invention. This is an inherently synthetic task. It requires us to consider a counterfactual—to put ourselves in the shoes of an imaginary PHOSITA before the new invention, to consider all the resources in the art that would have been available to that person, as well as the nature of the problem to be solved, and then to ask the question “was this combination of elements obvious”? § 103 Conditions for patentability; non-obvious subject matter. 1 A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. The story of the non-obviousness statutory requirement is rooted in some wrangling between the courts and Congress. The courts, led by the Supreme Court, had set out tests for what counted as a patentable invention that many believed to be too high. Some referred to them as requiring “a flash of genius.” Congress responded by passing the predecessor of § 103. It was the interpretation of that section, and the analysis of whether it trammeled on constitutionally forbidden territory, that was at stake in a case you have read before, Graham v. John Deere. We will be interested to see if your reaction to that case is different when you read it in the specific context of non-obviousness. 1 [USPTO Editor’s Note: Applicable to any patent application subject to the first inventor to file provisions of the AIA (see 35 U.S.C. 100 (note)). See 35 U.S.C. 103 (pre-AIA) for the law otherwise applicable.]
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INTELLECTUAL PROPERTY: LAW & THE IN
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Table of Contents INTRODUCTION ....
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TABLE OF CONTENTS iii 5.) 1052(e) .
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TABLE OF CONTENTS v d.) A Two-Part
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TABLE OF CONTENTS vii In re Fisher,
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x INTRODUCTION Basic Themes: Three
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xii INTRODUCTION see the Lotus v. B
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CHAPTER ONE The Theories Behind Int
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The Theories Behind Intellectual Pr
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CHAPTER TWO Intellectual Property &
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Limitations on Congressional Power:
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CHAPTER THREE Intellectual Property
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Intellectual Property & the First A
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108 TRADEMARK: INTRODUCTION right?
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110 TRADEMARK: INTRODUCTION Compari
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112 TRADEMARK: INTRODUCTION the hol
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114 TRADEMARK: INTRODUCTION out of
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116 TRADEMARK: INTRODUCTION PROBLEM
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118 SUBJECT MATTER: REQUIREMENTS FO
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154 GROUNDS FOR REFUSING REGISTRATI
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CHAPTER SEVEN Trademark Infringemen
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Use in Commerce 179 it purchase not
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Use in Commerce 181 associated with
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Use in Commerce 183 engaged in the
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Use in Commerce 185 A. Trademark In
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Likelihood of Confusion 187 Doughne
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Likelihood of Confusion 189 closely
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Likelihood of Confusion 191 appella
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Likelihood of Confusion 193 sophist
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Contributory Infringement 195 meani
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Contributory Infringement 197 Backg
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Contributory Infringement 199 Claim
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Contributory Infringement 201 on th
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Contributory Infringement 203 B. Di
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Contributory Infringement 205 for w
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Contributory Infringement 207 an un
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Contributory Infringement 211 Googl
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214 DEFENSES TO TRADEMARK INFRINGEM
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232 FALSE ADVERTISING, DILUTION &
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272 INTRODUCTION TO COPYRIGHT: THEO
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What does copyright cover? CHAPTER
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What does copyright cover? 299 Imag
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Originality: Independent Creation a
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The Idea-Expression Distinction 319
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Merger of Idea and Expression 323 3
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Merger of Idea and Expression 325 W
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Merger of Idea and Expression 327 b
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Merger of Idea and Expression 329 a
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Merger of Idea and Expression 335 A
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Useful Articles 337 PROBLEM 11-2 [W
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Useful Articles 339 if design eleme
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Useful Articles 341 form, the six-i
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Methods of Operation: Introduction
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Fixation (Copyright Meets Software,
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CHAPTER TWELVE Copyright’s “Rea
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Exclusive Rights 383 Shakespeare’
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The Idea/Expression Distinction in
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The Idea/Expression Distinction in
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Copyright Meets Computer Software:
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Copyright in Characters 407 c.) Cop
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Copyright in Characters 409 charact
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A Two-Part Test for Copyright Infri
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“De minimis” Copying 417 puppy
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“De minimis” Copying 419 Newton
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“De minimis” Copying 421 Notes
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CHAPTER THIRTEEN Limitations on Exc
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Fair Use, Technology and Contributo
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Fair Use Meets Technology 465 4.) F
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Fair Use Meets Technology 467 succe
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Fair Use Meets Technology 469 rebut
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Fair Use Meets Technology 471 Compu
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Fair Use Meets Technology 473 Becau
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Fair Use Meets Technology 475 she w
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Fair Use Meets Technology 477 owner
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Fair Use Meets Technology 479 corre
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Fair Use Meets Technology 481 or li
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Fair Use Meets Technology 483 reaso
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Fair Use Meets Technology 485 onlin
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A Fair Use Case-Study: Multiple Cop
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Conclusion 513 annually from Eastla
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CHAPTER FOURTEEN Secondary Liabilit
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The Stakes of Contributory Infringe
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Contributory and Vicarious Infringe
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Inducement Liability 527 power and
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Inducement Liability 529 As the num
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Inducement Liability 531 contributo
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Inducement Liability 533 promoting
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Inducement Liability 535 capability
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Inducement Liability 537 films (e.g
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Inducement Liability 539 114 Yale L
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Safe Harbors: Section 512, Direct I
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558 ANTI-CIRCUMVENTION: A NEW STATU
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CHAPTER SIXTEEN Copyright & State M
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Introduction 605 (A) any cause of a
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Introduction 607 viewer directly to
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632 PATENTS: HOPES, FEARS, HISTORY
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CHAPTER EIGHTEEN Patentable Subject
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