Friday, February 21, 2020

Choirock loses at CAFC on 2 to 1 vote

The dissent in Choirock:

The ’504 patent is directed to a transformable toy
shaped like a ball that can open to reveal a figurine. The
prior art references—Maruyama ’693 and Maruyama
’258—disclose a nearly identical toy that can open to reveal
a robot figurine. While the Board may have been correct in
finding that Choirock did not establish that claims 1–4 and
7–8 were anticipated, I think the Board demonstrably
erred in holding that Choirock failed to show that claims 1–
4 and 7–8 would have been obvious. I respectfully dissent
from the majority’s decision to affirm the Board with respect to those grounds.
I join the majority opinion as to
standing and claim 9 and its dependent claims.

There was a matter of ignoring arguments:

The expert’s testimony is of no significance here. He
labeled the torso of Maruyama ’258’s robot toy as the “display member” using a different definition of “display member.” Maruyama ’258 plainly shows a “display member”
under the Board’s construction.
Due to the above error, the Board did not address Spin
Master’s other arguments why the prior art would not have
rendered claims 1–4 obvious in light of other limitations in
those claims. I therefore would remand for further proceedings.

And, in Choirock’s Reply in response to the rotatability issue raised by Spin Master, Choirock argued that
it “would have been obvious to . . . add rotatability to the
head, arms[,] and feet” of the figurine in Maruyama ’258 in
light of Obara “so as to reveal a previously unseen image.”
J.A. 514. This response was proper. Chamberlain, 944
F.3d at 925. The Board erred by ignoring Choirock’s arguments.


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