Because we agree that the asserted claims of the patent in suit would have been obvious to a person of ordinary skill in the art at the time of filing, we affirm.
As a nuance in the case:
Microsoft asserted declaratory judgment counterclaims of noninfringement and invalidity of the ’592 patent. Because Microsoft also asserted that Odom was barred from bringing suit by his employment agreements with an Oregon-based law firm that had been representing Microsoft in other patent matters, the Texas court transferred the case to the District of Oregon. Odom v. Microsoft Corp., 596 F. Supp. 2d 995, 1004 (E.D. Tex. 2009).
The CAFC reviewed the harsh treatment dealt to Odom by the district court:
However, the court held that the asserted claims presented “one of the clearest” cases of obviousness that had come before it because Odom had simply “cobbled together various pieces of what was already out there in a manner . . . that would have been obvious to anyone skilled in the art at the time of the invention.” J.A. 35. The court reasoned that any differences argued by Odom between the claimed invention and Kavalam as well as the “taskbar” in Microsoft’s Windows98 prior art system were not patentable. J.A. 34. Thus, the court granted summary judgment of invalidity to Microsoft. Id.
The CAFC reached the same conclusion as did the district court:
We agree with the district court and Microsoft that, in light of Kavalam, the ’592 patent’s asserted claims would have been obvious as a matter of law.
KSR was cited against Odom:
Those same concepts are claimed in the ’592 patent except that the groups of tools are on a single toolbar. That is an insignificant advance over Kavalam. KSR Int’l Co., 550 U.S. at 417 (“If a person of ordinary skill can implement a predictable variation [of a prior art work], § 103 likely bars its patentability.”).
Of a different matter:
U.S. v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (“The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice. . . . If the advice sought is not legal advice, . . . then the privilege does not exist.”).
***UPDATE. Note the post Odom's patent confirmed invalid by Federal Circuit , especially for the lengthy string of comments.