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Obviousness
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   copying of the invention
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   Author  Topic: copying of the invention  (Read 816 times)
Tom Clark
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copying of the invention
« on: Aug 10th, 2005, 9:58pm »
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The indicia of nonobviousness includes failure of others to solve a known problem; and copying of the invention in preference to the prior art.
 
 
Yet, how to distinguish between “copying of the invention” and “easily solving the problem with an obvious approach”?
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JimIvey
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Re: copying of the invention
« Reply #1 on: Aug 11th, 2005, 11:30am »
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I'm not sure I fully understand the question, but I think the two indicia are not entirely unrelated.
 
If the problem goes unsolved for a period of time, the invention bursts on to the scene, and then everyone copies it, you've got a fairly good case for non-obviousness.
 
I think there's something to the "in preference to the prior art" phrase -- that suggests there are multiple known ways to solve a particular problem, yet everyone wants to use the inventor's particular solution.  That suggests a certain, perhaps unexpected, superiority of the invention -- again suggesting non-obviousness, or at least the inadequacy of solutions tried before.  I suspsect the theory is that the most obvious solutions are typically tried first, so strong success in a crowded field suggests that many, more obvious solutions have been tried without much satisfaction.
 
In short, I think that copying an invention alone probably doesn't show non-obvious.  You have to also have the context of a "long felt need" or a number of other, inadequate solutions which precede the invention.  At least that's what I get from the wording of the question.
 
I hope that helps.
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Isaac
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Re: copying of the invention
« Reply #2 on: Aug 11th, 2005, 9:37pm »
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I think one way to consider the OP's question is to point out that the secondary considerations such as commercial success and copying by others are only evidence of non-obviousness and that like all evidence, the secondary conditions do not establish non-obviousness.  Like any piece of evidence, alternate explanations other than non-obviousness may be the cause of copying by industry.
 
In my opinion, copying by competitors even in the absense of a long felt need may be evidence of non obviousness.   Competitors have a long felt desire to deliver profits, if the competitor copies a patented feature to deliver profit but did not deliver the feature prior to being shown how it was done, then the copying suggests non obviousness.
 
I think the point of the OPs question is that duplication of a feature through independent discovery is not really the same as copying and further is evidence that any one skilled in the arts would recognize the problem and would come up with the solution.   I agree that such an argument is an alternative explanation for duplication of a feature, but I would point out two things.
 
First recognition of a problem can be a creative or an inventive activity, and even independent recreation does not prove that the duplication is not derived from the putative inventors work.
 
Secondly, the fact that there is an alternative explanation does not mean that the evidence of non-obviousness in not probative.  It is up to the examiner, or the defendant, or the court depending on the setting to present or review the evidence, argue or decide or weigh the evidence and come to a conclusion.
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Isaac
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