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Why Judges on the CAFC Should be Required to be Patent Attorneys

Why Judges on the CAFC Should be Required to be Patent Attorneys

DYSTAR TEXTILFARBEN GMBH & CO DEUTSCHLAND KG, Plaintiff-Appellee, v. C.H. PATRICK CO., and Bann Quimica LTDA, Defendants-Appellants, 464 F.3d 1356, 1368 (Fed. Cir. 2006) illustrates the problem of non-technical, non-patent attorney judges on the CAFC.  I suspect this case will cause more and more problems.

The case states:

Indeed, we have repeatedly held that an implicit motivation to combine exists not only when a suggestion may be gleaned from the prior art as a whole, but when the “improvement” is technology-independent and the combination of references results in a product or process that is more desirable, for example because it is stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient. Because the desire to enhance commercial opportunities by improving a product or process is universal — and even common-sensical — we have held that there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves. In such situations, the proper question is whether the ordinary artisan possesses knowledge and skills rendering him capable of combining the prior art references.

I guess you can obtain a patent when your invention is not more desirable, one that is weaker, more expensive, slower, heavier (unless that would make it better), less durable, or less efficient.  Inventors need to focus on inventions that have reduce their commercial opportunities, according to these judges.

Do these people actually read what they write?  Do they understand the logical implications of their statements?  The judges on this case were Michel, Raider and Schall.  Not surprisingly, none of the judges who wrote this have a technical background and none are patent attorneys.

What the hell does “the ‘improvement’ is technology-independent” mean?  Not surprisingly, there is no explanation of this phrase in the case.

This is just one more example of why we should not allow non-patent attorneys on the CAFC – or at least they should have to take a course on logic as it applies to patents and inventions. 


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