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Archived updates for Sunday, October 14, 2007

ND Cal. Adopts Revised Model Patent Jury Instructions


Thanks to the IP Law Observer for pointing out that the U.S. District Court for the U.S. District Court for the Northern District of California has adopted revised Model Patent Jury Instructions on October 5, 2007. The revised sections on obviousness include two alternatives depending upon whether the jury renders an advisory verdict on obviousness:

F. Obviousness

[Alternative 1 – Jury decides underlying factual issues only]

11. The ultimate legal conclusion on the obviousness question will be made by the court. However, in order for the court to do so, you must answer the following preliminary factual questions:

a. What was the level of ordinary skill in the field that someone would have had at the time the claimed invention was made? (check the applicable answer)

______set forth Alleged Infringer’s contention, e.g., an individual with at least 3 years of experience in both furniture design and manufacture]

[set forth Patent Holder’s contention, e.g., anyone who has worked in the field of furniture design or manufacture for at least two years]

[other, specify ]

b. What was the scope and content of the prior art at the time of the claimed invention? (check the applicable answer)

[set forth what the Alleged Infringer has offered as the invalidating prior art, e.g., ’123 patent on fixed sitting device with four legs, general knowledge in field of industrial design that a horizontal surface may be held parallel to the ground using three legs and common knowledge that a person can easily move an object weighing under 25 pounds]

[set forth what the Patent Holder asserts was within the scope and content of the prior art, e.g., ’123 patent on fixed sitting device with four legs]

[other, specify ]

c. What difference, if any, existed between the claimed invention and the prior art at the time of the claimed invention?

. [set forth the Alleged Infringer’s contention as to the difference, e.g., no difference between scope of invention and what is known in prior art]

[set forth the Patent Holder’s contention as to the difference, e.g., only 3 legs on a sitting device and portability]

[other, specify ]

d. Which of the following factors has been established by the evidence with respect to the claimed invention: (check those that apply)[verdict form should list only those factors for which a prima facie showing has been made]:

commercial success of a product due to the merits of the claimed invention

a long felt need for the solution that is provided by the claimed invention

unsuccessful attempts by others to find the solution that is provided by the claimed invention

copying of the claimed invention by others

unexpected and superior results from the claimed invention

acceptance by others of the claimed invention as shown by
praise from others in the field or from the licensing of the claimed
invention

independent invention of the claimed invention by others before or at about the same time as the named inventor thought of it

[ other factor(s) indicating obviousness or nonobviousness—describe the factor(s) ]


[Alternative 2 - Jury decides underlying factual issues and renders advisory verdict on obviousness]

11. The ultimate conclusion that must be reached on the obviousness question is whether Alleged Infringer has proven that it is highly probable that the claimed invention would have been obvious to a person of ordinary skill in the field at the time the patent application was filed. In order to properly reach a conclusion the following preliminary questions must be answered:

a. What was the level of ordinary skill in the field that someone would have had at the time the claimed invention was made? (check the applicable answer)

[set forth Alleged Infringer’s contention, e.g., an individual with at least 3 years of experience in both furniture design and manufacture]

[set forth Patent Holder’s contention, e.g., anyone who has worked in the field of furniture design or manufacture for at least two years]

[other, specify ]

b. Was [disputed reference] within the scope and content of the prior art at the time of the claimed invention? (check only if reference was within the scope and content of the prior art)

[set forth the prior art reference [alleged infringer] has offered as prior art that the [patent holder] disputes as being in the scope and content of the prior art. If there is more than one reference in dispute, each disputed reference should be listed separately.]

c. What difference, if any, existed between the claimed invention and the prior art at the time of the claimed invention?

. [set forth the Alleged Infringer’s contention as to the difference, e.g., no difference between scope of invention and what is known in prior art]

[set forth the Patent Holder’s contention as to the difference, e.g., only 3 legs on a sitting device and portability]

[other, specify ]

d. Which of the following factors has been established by the evidence with respect to the claimed invention: (check those that apply)[verdict form should list only those factors for which a prima facie showing has been made]:

commercial success of a product due to the merits of the claimed invention

a long felt need for the solution that is provided by the claimed invention

unsuccessful attempts by others to find the solution that is provided by the claimed invention

copying of the claimed invention by others

unexpected and superior results from the claimed invention

acceptance by others of the claimed invention as shown by
praise from others in the field or from the licensing of the claimed
invention

independent invention of the claimed invention by others before or at about the same time as the named inventor thought of it

[ other factor(s) indicating obviousness or nonobviousness—describe the factor(s) ]

After consideration of the answers to the preliminary questions above, do you find that the Alleged Infringer has proven that it is highly probable that the claim of Patent Holder’s patent would have been obvious to a person of ordinary skill in the field at the time the patent application was filed?
Yes No

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1 Comments:

Anonymous Anonymous said...

^^Thanks!!

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April 07, 2009 1:16 AM  

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