24 April 2009

Obvious to Whom?

Oh, dear. Oh, my. For the moment, we'll just start with a quotation from a new patent opinion.

The plaintiffs brought suit for patent infringement against the defendant, and prevailed in the district court, precipitating an appeal that, among other things, challenges the patent's validity. Dissatisfied with the amount of relief the court gave them, the plaintiffs cross-appeal; but on the view we take, the only issue we shall have to consider is whether the patented invention would have been "obvious" to persons skilled in the relevant art, as that word is understood in patent law. 35 U.S.C. § 103(a).

The plaintiffs own a manufacturer, called Know Mind Enterprises, and the defendant, doing business under the name Topco Sales, is another manufacturer. Both firms produce what the parties call "sex aids" but are colloquially referred to as "sex toys." A more perspicuous term is "sexual devices," by analogy to “medical devices." The analogy lies in the fact that, like many medical devices (thermometers for example), what we are calling sexual devices are intended to be inserted into bodily orifices, albeit for a different purpose.

Ritchie v. Vast Resources, Inc., No. 08–1528, slip op. at 2–3 (Fed. Cir. 24 Apr 2009). Which leads to several questions:

  • What, precisely, is the relevant art?
  • Who, precisely, is "skilled" in that relevant art?
  • What would a bunch of elderly lawyers know about any of the above? Oh, wait; Posner wrote the opinion, sitting by designation...

I would have paid to see that oral argument. All puns intended.

I guess I just take my comedy and amusement where I can find it. Too bad the opinion wasn't released yesterday, which would have been literarily salubrious.