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Obviousness
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   Road Patent
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griff
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Road Patent
« on: Dec 16th, 2005, 10:01am »
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I'm trying to determine whether I should move further forward with applying for a patent.  My obstacle is whether the product is obvious.  I'll use the Road Patent for the example.
 
I have a new idea for improving the road or pavement as we know it a commonly.  A road consists of layers of ingredients and methods; such as gravel (type, thickness and compaction),  asphalt (type, size, thickness and compaction).  Assume that there is a prior patent on the common asphalt road and variations of the same.  
 
One problem with roads is that they crack due to various reasons.  I intend to take another patented product that reduces cracking is walls or cielings for example, but  has never been used in roadway construction or design.
 
For the moment assume that this product could be either (a) placed on top of the existing road, or (b) incorporated into the construction when a new road is built.
 
Since the product was used before hand in preventing cracks in other applications (walls and cielings) is it safe to say that either:
1) it is not obvious in roadway applications when applied to the top of the road, or
2) it is not obvious in roadway appications, when incorporated into a new road during construction, or
3) it is obvious period.
 
 
 
 
 
 
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JimIvey
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  jamesdivey  
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Re: Road Patent
« Reply #1 on: Dec 16th, 2005, 11:21am »
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This is a close call and could go either way (at least in your scenario).  If I were writing the application for you, I'd want to know your best argument for non-obviousness and to lay the foundation for that argument in the application itself.  I'm guessing that the argument would be based on the type of forces experienced in a wall vs. those experienced in a road.  I suspect walls experience shear forces while a road experiences tension forces (due to the road sagging into area where earth underneath has eroded or by one side slipping down a slope slightly).  In other words, I'm guessing that cracks in walls are from different parts of the wall shearing relative to each other and cracks in the roads are from portions of the road being pulled away from one another.  There, you may have the same substance acting in very different ways to prevent cracks.
 
As you can see, obviousness arguments are extremely fact-specific.
 
I hope that helps.
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James D. Ivey
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griff
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Re: Road Patent
« Reply #2 on: Dec 16th, 2005, 11:45am »
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Thank you for you insight.  With this particular product there are three markets that could use the item.  In each market there is what we will call the aftermarket (adding the product  to the application) and naturally the new production market.
So the potential is rather broad and deep as well.
 
I wish we could simply say "obviously the product has never been used in the road market per se".   It seems natural to want to write the argument in the design process or make up of the new road (such as: a layer of rock, a layer of crack sealant, a layer of asphalt).  However if I approach the application as such we fail to cover the aftermarket and only the new construction market, unless we stipulate something like an alternative design.
 
Obviously I sense a viable market and have pondered the question of investing in a professional to handle the matter and weighing the costs vs. net profit (to market without patent).  I've attemtped to research all past art, whether in the market or in the patent office, there nothing which incorporates this idea as yet.
 
 
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JimIvey
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Re: Road Patent
« Reply #3 on: Dec 16th, 2005, 12:33pm »
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on Dec 16th, 2005, 11:45am, griff wrote:
I wish we could simply say "obviously the product has never been used in the road market per se".

"per se" is one of those clauses that ought to automatically come with a little red flag to suggest reading the context very carefully.
 
For example, computer programs are not patentable per se, which means that they are, as long as you're careful about it.
 
Ideas per se are not protectable, which means they are provided you're careful about it.
 
The current occupants of the White House don't believe in torture per se and haven't done anything illegal per se in tapping the phones and e-mails of thousands of Americans without warrants (in the news this morning).
 
"Per se" is a strong indicator, much like "merely" in a court opinion (immediately tells you who wins -- kind of like when they commend your arguments first and pause before the "however").
 
Okay, so why is this relevant here?  In the quoted statement above, the inclination to add the "per se" qualifier suggests looking really closely at your position.  The "per se" doesn't negate novelty, but it suggests that obviousness is a very close issue -- as if you're leaving something out of the statement and hoping the "per se" saves the statement from being misleading.  It means you should give some significant thought to the missing part of that statement.
 
Of course, that's not legal advice per se.  Actually, it really isn't.
 
Regards.
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James D. Ivey
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griff
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Re: Road Patent
« Reply #4 on: Dec 16th, 2005, 1:30pm »
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I appreciate your crtique of the adverb "per se" in my wish list, however there is no need to red flag it as it is simply in itself (the road market).  I sense what would more concisely negate novelty would be to claim it alone "per se".
 
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