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Is Everything Obvious after KSR?

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OFI: Manufacturer of corrugated flexible metal hose and braid products for the ... CSST: Corrugated Stainless Steel Tubing, used for natural gas. ... – PowerPoint PPT presentation

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Title: Is Everything Obvious after KSR?


1
Is Everything Obvious after KSR?
  • Holland Smith
  • IEOR 190G
  • 4/13/2009

2
  • A Case in Depth
  • Omegaflex Inc. (OFI)
  • vs
  • Parker-Hannifin Corporation

3
Background
  • OFI Manufacturer of corrugated flexible metal
    hose and braid products for the processing
    industries and other specialized applications.
    80 mln. annual revenue
  • Parker Manufactures motion control products,
    including fluid power systems, electromechanical
    controls and related components 12 bln. annual
    revenue

4
Background
  • OFI owns patents 6,079,749 (2000) 6,428,052
    (2002) relating to pipe fitting.
  • CSST Corrugated Stainless Steel Tubing, used for
    natural gas. Often gas lines in tight, difficult
    to reach areas ease of connection a necessity.
  • Issue in Dispute Locating Sleeve (6,428,052 )

5
Background
  • Parker OFI both make autoflare CSST systems for
    natural gas. (TracPipe, ParFlex)
  • Parker originally sold FastMate fittings without
    locating sleeves
  • Had to recall their products because of customer
    alignment issues.
  • Parker reissued fittings with sleeves, OFI sued

6
CSST Tubing
7
Sleeve and No Sleeve
The OFI Patent 118 The Locating Sleeve
The Parker Sweeney Patent No Sleeve
8
The Locating Sleeve
Omegaflex AutoFlare
Parker FastMate
Conductance of a pipe with a circular
aperture CKA K 11.7 liters/(seccm2) A
circular area of pipe cm2
9
Legal Proceedings
  • OFI sues Parker for infringement, Parker moves
    for invalidity because of obviousness.
  • 3/31/2006 (Before KSR) A summary judgment is
    issued in favor of OFI. The OFI patents are held
    to be valid, and Parker is found to be
    infringing.
  • A permanent injunction against Parker is issued.
    Parker can no longer sell FastMate connectors
    with locating sleeves.
  • Parker appeals. 6/18/2007 Injunction vacated,
    summary judgment reversed, case remanded.

10
District Courts Reasons (pre KSR)
  • No skilled artisan motivation product claims to
    effectuate leak tight seal. Connection
    difficulties not anticipated in patent.
    (automaton vs. creativity)
  • Person of ordinary skill would not have
    expectation of reasonable success. Proof
    testimony given that Parker engineers had
    discussed sleeve, rejected it.
  • Parkers obviousness claim no good, since product
    was modified after release, as taught in OFI
    patent.
  • OFI filled long-felt need, evidenced by customer
    letter.

11
The Appeal KSR Applied
  • KSR Motivation to combine important to
    establish, but need not be found in prior art.
    Must also look at
  • interrelated teachings of multiple patents
    effects of demands known to the design community
    or present in the marketplace and the background
    knowledge possessed by a person having ordinary
    skill in the art.
  • Plethora of locating sleeves in prior art outside
    of CSST.
  • Weirauch letter identifies need for self-flaring
    tube not locating sleeve.

12
The Appeal KSR Applied
  • Sleeve was discussed by Parker engineers and
    rejected. Therefore, was within background
    knowledge at the time.
  • The rejection was not because of total lack of
    expectation of success. The cost was not
    prohibitively high, the sacrifice in performance
    not unacceptable.

13
Nonobviousness Criteria Raised
1) Lack of expectation of success
2) Fulfillment of long-felt market need
3) Praise
14
More Important Criteria for Non-Obviousness from
Other Cases
  • Teaching Away
  • (Takeda-Alphapharm, Pfizer Apotex)
  • Near Infinite combinations of possibilities
    (Pfizer-Apotex)
  • Commercial success
    (Graham-Deere)
  • Failure of others
  • Unexpected results may not be enough.

15
Thank you for your attention!References
  • Official Federal Circuit Review of Case
    http//www.ll.georgetown.edu/Federal/judicial/fed/
    opinions/07opinions/07-1044.pdf
  • US Patent Office Training Materials for Helping
    Examiners Understand KSR http//www.uspto.gov/web/
    offices/pac/dapp/opla/ksr/ksr_training_materials.h
    tm
  • List of Cases Citing KSR since 2007
    http//www.thefireofgeniu
    s.com/the-nonobviousness-standard/
  • Review of Decisions in Pharmaceutical Arena after
    KSR http//www.kilpatrickstockton.com/publications
    /downloads/SCahoonLaw360.pdf
  • Parker Home Page
    http//www.parker.com/
    portal/site/PARKER/
  • Omegaflex Home Page

    http//www.omegaflex.com/index.html
  • Pfizer-Apotex Case http//www.ll.georgetown.edu
    /federal/judicial/fed/opinions/06opinions/06-1261.
    pdf
  • Graham-Deere
    http//en.wikipedia.org/wiki/Graham_v._Jo
    hn_Deere_Co.
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