Friday, October 06, 2006

Dystar v. Patrick: the CAFC fights back on obviousness

Various blogs are talking about Dystar v. Patrick, involving US 5,586,992 directed to a process for dyeing materials with catalytically hydrogenated leuco indigo.

In the case, the CAFC reverses the district court's denial of a JMOL of invalidity for obviousness [i.e., the CAFC is finding obviousness.]

Of chemistry, the CAFC stated: because indigo pigment is insoluble in water, it must be de-oxidized or "reduced" to a water soluble white form known as "leuco indigo." IPBiz notes with interest that the word -reduced- is in quotes and the word -de-oxidized- is NOT in quotes.

Later, the CAFC notes that a common method of indigo reduction [no quotes] catalytic hydrogenation was patented in 1917 [Brochet].

The "infringer" Bann argued that claims 1-4 were obvious over the 1917 patent and other references, including two pre-1917 pieces of art.

The CAFC cited Richardson, 122 F.3d 1476 on obviousness. Alza v. Mylan (Sept. 6, 06) is also cited.

Here, the CAFC found the critical issue to be whether or not stabilizing the reduced indigo in SOLUTION form (as distinct from solid) renders the claimed process NONOBVIOUS.

The CAFC characterized the Dystar position: "no knowledge of chemistry is required in the relevant technical field." The CAFC found that substantial evidence did not support the jury's finding that a person of ordinary skill was a dyer with no knowledge of chemistry.

Instead, the CAFC found that the person of ordinary skill was one designing an optimal dyeing process.

At this point, one reaches the motivation test, and the CAFC has some unfavorable comments for the FTC and NAS reports on patent quality, etc.

Yes, the CAFC does cite In re Kotzab, 217 F.3d 1365, as to common sense and common knowledge. [Query: will Google bother to index this IPBiz post citing Kotzab?]

The Dystar case gets into In re Lee, a case much cited by the "patent law reformers."

See also

[two IPBiz posts not indexed by Google.]


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