Elsewhere, in the stent wars, Cordis Corporation (“Cordis”) appeals, and Boston Scientific Corporation and
Scimed Life Systems, Inc. (“Boston Scientific”) cross-appeal, from a final judgment of
the United States District Court for the District of Delaware. The CAFC said: With one minor exception, we affirm.
Note that the CAFC was not impressed with the appeals: We review the denial of a motion for judgment as a matter of law without deference, and we review the denial of a motion for a new trial for abuse of discretion.
Hewlett-Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314, 1318 (Fed. Cir. 2003). Each
party raises issues that have little merit. We dispose of those arguments summarily,
reserving more extended discussion for the few issues that merit attention.
Elsewhere, pro se appellant Paul J. Bryan was smoked.
A claimed invention is unpatentable if the differences between it and the prior art
are such that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art. See 35 U.S.C. § 103(a).
The ultimate determination of obviousness is a legal conclusion based on underlying
findings of fact. See, e.g., In re DBC, 545 F.3d 1373, 1377 (Fed. Cir. 2008).
This language and the substance of the printed
matter, however, cannot impart patentability, as it is “‘useful and intelligible only to the
human mind.’” In re Lowry, 32 F.3d 1579, 1583 (Fed. Cir. 1994) (quoting In re Bernhart,
417 F.2d 1395, 1399 (CCPA 1969)). Indeed, the printed matter does not depend on the
game’s structural elements, and the game’s structural elements do not depend on the
printed matter. See Ngai, 367 F.3d at 1339 (“[T]he printed matter in no way depends on
the kit, and the kit does not depend on the printed matter.”). Thus, the printed matter
does not exploit, or interrelate with, the underlying structural elements and, therefore, is
not “functionally related to the substrate.” See id. Importantly, Mr. Bryan does not
contend either that his claimed game apparatus is structurally different from the game
apparatus in Elrod or that applying various labels to game cards is a new relation of
printed matter to a structure. Thus, the claimed structural features are old and the
relationship of the printed matter to those structural features is also old. Accordingly,
because Mr. Bryan claims neither a new physical structure nor a new relation of printed
matter to physical structure, and because the distinction between the claims and the
prior art is nonfunctional printed matter, Mr. Bryan’s claims are not patentable over the
While Mr. Bryan asserts that the printed matter is functionally related because,
for example, it allows the cards to be “collected, traded, and drawn” during game play,
these types of arguments do not pertain to what he claims and seeks to patent—the
structure of the game apparatus.