5 INVALIDITY

5.1 INVALIDITY—GENERALLY

Patent invalidity is a defense to patent infringement.  Even though the PTO examiner has allowed the claims of a patent, you have the ultimate responsibility for deciding whether the claims of the patent are valid.

I will now instruct you on the invalidity issues you should consider.  As you consider these issues, remember that [the alleged infringer] bears the burden of proving that it is highly probable that the claims are invalid.

Committee Note:

Presumption of Validity. Patents are entitled to a presumption of validity. The presumption of validity, like all legal presumptions, is a procedural device.  In light of the procedural role of the presumption of validity, instructing the jury on the presumption in addition to informing it of the highly probable burden of proof may cause jury confusion as to its role in deciding invalidity. This instruction, therefore, omits any reference to the presumption of validity.  Some courts, however, follow the more traditional approach, and instruct the jury on the presumption.  Both approaches appear consistent with Federal Circuit law.

5.2 WRITTEN DESCRIPTION

[The alleged infringer] contends that claims [  ] of the [XXX] patent are invalid for failure of the patent to provide an adequate written description of the claimed invention.  [The alleged infringer] must prove that it is highly probable these claims lacked an adequate written description.

The written description requirement is satisfied if a person of ordinary skill in the field, reading the patent application as originally filed, would recognize that the patent application described the invention of these claims, even though the description might not use the exact words found in the claim.  The written description is adequate if it shows that the inventor was in possession of each claim of the invention at the time the application for the patent was filed, even though the claim may have been changed or new claims added during the prosecution of the application.

It is not necessary that each and every aspect of the claim be explicitly discussed, as long as a person of ordinary skill would understand that any aspect not expressly discussed is implicit in the patent application as originally filed.  If you find that one or more of the claims challenged by [the alleged infringer] lacked an adequate written description, you must find each such claim invalid.

5.3 ENABLEMENT

[The alleged infringer] contends that claims [  ] of the [XXX] patent are invalid because the patent does not disclose sufficient information to enable one skilled in the field of the invention, at the time the application was filed (or its effective filing date), to make and use the claimed invention.  This requirement is known as the enablement requirement.  If a patent claim is not enabled, it is invalid. Each claim must be analyzed for compliance with the enablement requirement.  [The alleged infringer] must prove that it is highly probable that the claim was not enabled.

In considering whether a patent claim satisfies the enablement requirement, you must keep in mind that patents are written for persons of skill in the field of the invention.  Thus, a patent need not expressly state information that skilled persons would be likely to know or could obtain.  [The alleged infringer] bears the burden of establishing lack of enablement by showing that it is highly probable that a person skilled in the art, upon reading the patent document, would not be able to make the invention work without undue experimentation.  The fact that some experimentation may be required for a skilled person to make or use the claimed invention does not mean that a patent’s written description fails to meet the enablement requirement.  Factors you may consider in determining whether making the invention would require undue experimentation include:

  1. the quantity of experimentation necessary;
  2. the amount of direction or guidance disclosed in the patent;
  3. the presence or absence of working examples in the patent;
  4. the nature of the invention;
  5. the state of the prior art;
  6. the relative skill of those in the art;
  7. the predictability of the art; and
  8. the breadth of the claims.

If you find that one or more of these claims did not comply with the enablement requirement, you must find each such claim invalid.

5.4 BEST MODE

[The alleged infringer] alleges that claims [  ] are invalid because the inventor (or any one of the inventors) believed there was a best way of making or using the invention defined by claims [  ] but failed to disclose that best way in the patent.  The obligation to disclose the best way of making or using an invention is referred to as the “best mode” requirement and the failure to disclose what the inventor believed was the best mode for making or using the invention defined by a claim renders that claim of the patent invalid.  [The alleged infringer] must prove that it is highly probable that the inventor had a best mode and failed to disclose it.

Determining whether or not an inventor failed to disclose the best mode involves answering two questions.  First, at the time the application was filed, did the inventor know of a way, or mode, of making or using the invention claimed in the patent which the inventor considered to be better than any other way?  Second, if the inventor did consider one mode to be preferable to all others, does the disclosure made in the patent specification enable a person skilled in the art to carry out that best mode?  If the inventor did not actually prefer one way of making or using the invention over other ways, there can be no violation of the best mode requirement.  If the inventor did believe there was a best way to make or use the invention, the inventor must have disclosed that best mode of making or using the invention in sufficient detail to enable a person of ordinary skill in the field of the invention to carry out that best mode without excessive experimentation.

If you find that one or more of these claims failed to satisfy the best mode requirement, you must find each such claim invalid.

5.5 ANTICIPATION—PUBLICLY USED OR KNOWN, OR PREVIOUSLY PUBLISHED

[The alleged infringer] contends that claims [  ] of the [XXX] patent are invalid because the claimed invention is not new.  For a claim to be invalid because it is not new, all of its requirements must have existed in a single device or method that predates the claimed invention, or must have been described in a single previous publication or patent that predates the claimed invention.  In patent law, such previous device, method, publication or patent is called a “prior art reference.”  If a patent claim is not new we say it is “anticipated” by a prior art reference.  [The alleged infringer] must prove that it is highly probable that the claim was anticipated.

The disclosure in the prior art reference does not have to be in the same words as the claim, but all of the requirements of the claim must be there, either stated or necessarily implied, so that someone of ordinary skill in the field of [identify field] looking at that one reference would be able to make and use at least one embodiment of the claimed invention.

Anticipation also occurs when the claimed invention inherently (necessarily) results from practice of what is disclosed in the written reference, even if the inherent disclosure was unrecognized or unappreciated by one of ordinary skill in the field of the invention.

Here is a list of the ways that [the alleged infringer] can show that a patent claim was not new:

Note: Use only those that apply to this case.

  • [if the claimed invention was already publicly known or publicly used by others in the United States before [insert date of  invention unless at issue];]
  • [if the claimed invention was already patented or described in a printed publication anywhere in the world before [insert date of invention unless at issue].  [To qualify as a prior art reference, a “printed publication” must be at least reasonably accessible to those interested in the field, even if it is difficult to find.  [An electronic publication, including an on-line or internet publication, is a “printed publication” if it is at least reasonably accessible to those interested in the field even if it is difficult to find.]];]
  • [if the claimed invention was already described in another published U.S. patent application or issued U.S. patent that was based on a patent application filed before [insert date of the patent holder’s application filing date] [or] [insert date of invention unless at issue];]

[Since it is in dispute, you must determine a date of invention for the [claimed invention].]

If a patent claim is not new as explained above, you must find that claim invalid.

5.6 ANTICIPATION—MADE OR INVENTED BY SOMEONE ELSE

The alleged infringer contends that claims [  ] of the [XXX] patent are invalid as anticipated because the invention was first made or invented by someone else.  If someone other than [the named inventor] made or invented the invention described in one or more such patent claims involved in this lawsuit, then each such claim was “anticipated” by the other invention, and each such claim is invalid. [The alleged infringer] must prove that it is highly probable that each such claim was anticipated by the other invention.

Here is a list of the ways that [the alleged infringer] can show that a patent claim was not new because the invention described in such claim was first made or invented by someone else:

Note: Use only those that apply to this case.

  • [if the claimed invention was already made by someone else in the United States before [insert date of invention unless in issue], if that other person had not abandoned the invention or kept it secret;]
  • [if [the named inventor] did not invent the claimed invention but instead learned of it from someone else;]
  • [if [the patent holder] and [the alleged infringer] dispute who is a first inventor, the person who first conceived of the claimed invention and first reduced it to practice is the first inventor; if one person conceived of the claimed invention first, but reduced it to practice second, that person is the first inventor only if that person (a) began to reduce the claimed invention to practice before the other party conceived of it and (b) continued to work with reasonable diligence to reduce it to practice from a time just before the other party’s conception.]

Note: Use the remaining paragraphs only if priority of invention is in dispute.

Since priority of invention is in dispute in this case, you must determine a date of conception and reduction to practice for the [claimed invention] [and/or] [prior invention] and whether [the named inventor] [and/or] [the prior inventor] was reasonably diligent in reducing the invention to practice.  Conception is the formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is to be applied in practice.  Reduction to practice occurs either as of the filing of the patent application or when the invention was actually made and was shown to work for its intended purpose.  Reasonable diligence means that the inventor worked continuously on reducing the invention to practice.  Interruptions necessitated by the everyday problems and obligations of the inventor or others working with him or her do not prevent a finding of reasonable diligence.

[In order to prove prior invention in this case, [the alleged infringer] is required to present additional evidence beyond the testimony of the prior inventor.  However, you must evaluate all pertinent evidence, including that testimony, and make a sound determination that the evidence credibly establishes prior invention.  Ultimately, [the alleged infringer] bears the burden of proving that it is highly probable that the patent claims are invalid.]

If the invention of a patent claim was first made or invented by someone else as explained above, you must find the patent claim invalid.

5.7 ANTICIPATION—STATUTORY BARS

[The alleged infringer] may prove that claims [  ] of the [XXX] patent are invalid by showing that it is highly probable that each such claim failed to meet one of several statutory provisions in the patent laws.  These provisions are called “statutory bars.”  For a patent claim to be invalid because of a statutory bar, all of its requirements must have been present in one prior art reference dated more than one year before the effective filing date of the patent application.

Here is a list of ways [the alleged infringer] can show that the patent application was not timely filed, that is, filed within one year of the occurrence of any of the following events:

Note: Use only those that apply to this case.

  • [if the claimed invention was already patented or described in a printed publication anywhere in the world before [insert date that is one year before the effective filing date of patent application].  [A reference is a “printed publication” if it is reasonably accessible to those interested in the field, even if it is difficult to find.  [An electronic publication, including an on-line or internet publication, is a “printed publication” if it is at least reasonably accessible to those interested in the field, even if it is difficult to find.]];]
  • [if the claimed invention was already being publicly or commercially used in the United States before [insert date that is one year before the effective filing date of the patent application] and that use was not primarily an experimental use controlled by the inventor to test whether the invention worked for its intended purpose;]
  • [if a device or method using the claimed invention was sold or offered for sale in the United States, and that claimed invention was ready for patenting, before [insert date that is one year before application filing date].  [The claimed invention is not being [sold] [or] [offered for sale] if [the patent holder] shows that the [sale] [or] [offer for sale] was primarily experimental.]  [The claimed invention is ready for patenting if it was actually built, or if the inventor had prepared drawings or other descriptions of the claimed invention that were sufficiently detailed to enable a person of ordinary skill in the field of the invention to make and use the invention based on them.];]
  • [if [the patent holder] had already obtained a patent on the claimed invention in a foreign country before filing the original U.S. application, and the foreign application was filed more than one year before the effective filing date of the U.S. application.]

For a claim to be invalid because of a statutory bar, all of the claimed requirements must have been either (1) disclosed in a single prior art reference or (2) implicitly disclosed in a single prior art reference as viewed by one of ordinary skill in [the field of the invention].  The disclosure in a reference does not have to be in the same words as the claim, but all of the requirements of the claim must be described in enough detail, or necessarily implied by or inherent in the reference, to enable someone of ordinary skill in the field of the invention looking at the reference to make and use at least one embodiment of the claimed invention.

A prior art reference also invalidates a patent claim when the claimed invention necessarily results from practice of the subject of the prior art reference, even if the result was unrecognized and unappreciated by one of ordinary skill in the field of the invention.

If you find a patent claim failed to meet a statutory bar, you must find the patent claim invalid.

5.8 IMPROPER INVENTORSHIP

[In this case, [the alleged infringer] contends that the claims of the [XXX] patent are invalid because of improper inventorship.  To prove invalidity because of improper inventorship, [the alleged infringer] must show that it is highly probable that the patent fails to meet the requirement that all of the actual inventors, and only the actual inventors, be named as inventors in the patent.  This is known as the “inventorship” requirement.  In determining whether the inventorship requirement has been satisfied here, you should be guided by the following principles.

To be an inventor, one must make a significant contribution to the conception of one or more of the claims of the patent.  Whether the contribution is significant is measured against the scope of the full invention.

Conception is the mental formulation and disclosure by the inventor(s) of a complete idea of the inventive solution.  An inventive solution is considered to be a complete idea when disclosure of the idea would enable anyone with ordinary skill in the pertinent art to reduce the invention to practice.

Persons may be inventors even if they do not physically work together, make the same type or amount of contribution, or contribute to the subject matter of every claim of the patent.  While persons may be joint or co-inventors even though they do not physically work together, they must have some open line of communication during or at approximately the time of their inventive effort.

Explaining to the actual inventors well-known concepts or the current state of the art does not make someone an inventor.  Likewise, merely helping with experimentation, by carrying out the inventor’s instructions, does not make someone an inventor.

5.9 OBVIOUSNESS

In this case, [the alleged infringer] contends claims [  ] of the [XXX] patent are invalid as obvious.  A patent claim is invalid if the claimed invention would have been obvious to a person of ordinary skill in the field of the invention [at the time the application was filed] [as of [insert date]].  This means that even if all the requirements of the claim cannot be found in a single prior art reference that would anticipate the claim or constitute a statutory bar to that claim, a person of ordinary skill in the field of the invention who knew about all of the prior art would have come up with the claimed invention.

But a patent claim composed of several requirements is not proved obvious merely by demonstrating that each of its requirements was independently known in the prior art.  Although common sense directs one to look with care at a patent application that claims as innovation the combination of known requirements according to their established functions to produce a predictable result, it can be important to identify a reason that would have prompted a person of ordinary skill in the relevant field to combine the requirements in the way the claimed new invention does.  This is so because inventions in most, if not all, instances rely upon building blocks long since uncovered, and claimed discoveries almost of necessity will be combinations of what, in some sense, is already known.  Accordingly, you may evaluate whether there was some teaching, suggestion, or motivation to arrive at the claimed invention before the time of the claimed invention, although proof of this is not a requirement to prove obviousness.  Teachings, suggestions, and motivations may be found in written references including the prior art itself.  However, teachings, suggestions, and motivations may also be found within the knowledge of a person with ordinary skill in the art including inferences and creative steps that a person of ordinary skill in the art would employ.  Additionally, teachings, suggestions, and motivations may be found in the nature of the problem solved by the claimed invention, or any need or problem known in the field of the invention at the time of and addressed by the invention.

Therefore, in evaluating whether such a claim would have been obvious, you should consider a variety of factors:

  1. Whether [the alleged infringer] has identified a reason that would have prompted a person of ordinary skill in the field of the invention to combine the requirements or concepts from the prior art in the same way as in the claimed invention.  There is no single way to define the line between true inventiveness on one hand (which is patentable) and the application of common sense and ordinary skill to solve a problem on the other hand (which is not patentable).  For example, market forces or other design incentives may be what produced a change, rather than true inventiveness.
  2. Whether the claimed invention applies a known technique that had been used to improve a similar device or method in a similar way.
  3. Whether the claimed invention would have been obvious to try, meaning that the claimed innovation was one of a relatively small number of possible approaches to the problem with a reasonable expectation of success by those skilled in the art.

But you must be careful not to determine obviousness using hindsight; many true inventions can seem obvious after the fact.  You should put yourself in the position of a person of ordinary skill in the field of the invention at the time the claimed invention was made, and you should not consider what is known today or what is learned from the teaching of the patent.

The ultimate conclusion of whether a claim is obvious should be based on your determination of several factual issues:

  1. You must decide the level of ordinary skill in the field of the invention that someone would have had at the time the claimed invention was made.
  2. You must decide the scope and content of the prior art.  In determining the scope and content of the prior art, you must decide whether a reference is pertinent, or analogous, to the claimed invention.  Pertinent, or analogous, prior art includes prior art in the same field of endeavor as the claimed invention, regardless of the problems addressed by the reference, and prior art from different fields reasonably pertinent to the particular problem with which the claimed invention is concerned.  Remember that prior art is not limited to patents and published materials, but includes the general knowledge that would have been available to one of ordinary skill in the field of the invention.
  3. You must decide what difference, if any, existed between the claimed invention and the prior art.

Finally, you should consider any of the following factors that you find have been shown by the evidence:

A.        Factors tending to show nonobviousness:

[1.        commercial success of a product due to the merits of the claimed invention];

[2.        a long-felt, but unsolved, need for the solution provided by the claimed invention];

[3.        unsuccessful attempts by others to find the solution provided by the claimed invention];

[4.        copying of the claimed invention by others];

[5.        unexpected and superior results from the claimed invention];

[6.        acceptance by others of the claimed invention as shown by praise from others in the field of the invention or from the licensing of the claimed invention]; and

[7.        disclosures in the prior art that criticize, discredit, or otherwise discourage the claimed invention and would therefore tend to show that the invention was not obvious.]

[8.        other evidence tending to show nonobviousness].

B.        Factors tending to show obviousness

[1.        independent invention of the claimed invention by others before or at about the same time as the named inventor thought of it]; and

[2.        other evidence tending to show obviousness].

[You may consider the presence of any of the [list factors A.1-8 as appropriate] as an indication that the claimed invention would not have been obvious at the time the claimed invention was made.  And you may consider the presence of the [list factors B.1-2 as appropriate] as an indication that the claimed invention would have been obvious at such time.  Although you should consider any evidence of these factors, the relevance and importance of any of them to your decision on whether the claimed invention would have been obvious is up to you.

[The alleged infringer] must prove that it is highly probable that a claimed invention was obvious.  If you find that a claimed invention was obvious as explained above, you must find that claim invalid.

Committee Note:

Alternative Instruction Reserving for the Court the Determination of Obviousness.  The Committee has been unable to reach a consensus on an instruction and a verdict form for those cases where obviousness is an issue and one or more of the parties seeks to have the jury make specific underlying factual determinations but have the ultimate legal question of obviousness made by the court.  One complication the Committee has considered is that there is no existing case law that provides guidance on how to implement the burdens of proof a party has with regard to either the statutory factors or the secondary considerations.  For example, in the alternative Instruction 5.10, we tell the jury “you must decide what difference, if any, existed between the claimed invention and the prior art.”  We find it difficult to translate that instruction into a finding an alleged infringer must establish is “highly probable” and then into a question or questions a jury answers on a verdict form.  Similarly, in this alternative instruction we identify “commercial success” as a secondary consideration.  We have not been able to agree on the patent owner’s burden of proof in establishing commercial success or agree on a form which the jury reports its finding on commercial success.

The model verdict form attached as an appendix requires the jury to make underlying factual determinations and make the ultimate determination on the obviousness question.  The court can then accept the jury’s verdict on the ultimate issue of obviousness or consider it as advisory only.  In any event, we suggest that the parties and the court develop an instruction and verdict form in the context of the fact pattern in the specific case.

Applying the Burden of Proof to Underlying Factual Findings.  It has been suggested that the burden of proof applies only to underlying factual findings, but not to claims and defenses as a whole.  While there might be some support for this suggestion, see, e.g.,Colorado v. New Mexico, 467 U.S. 310, 316 (1984); Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1360 n.5 (Fed. Cir. 2007) (quoting Colorado, 467 U.S. at 316), the Committee has not adopted it for the following reasons.  The relied upon cases describe the “clear and convincing” burden as applying to “factual conclusions.”  This language appears to be the source of the issue.  Interpreting Colorado as rejecting the idea that burdens can apply to claims or defenses, however, is questionable in light of Colorado’s reliance on In re Winship, 397 U.S. 358, 370 (1970), and Addington v. Texas, 441 U.S. 418, 423 (1979).  In those cases, the “factual conclusions” discussed were determinative facts of the “guilt of a criminal charge,” e.g., In re Winship, 397 U.S. 358, 361, 370, 374, and not underlying evidentiary facts.  As Colorado itself states, the burden of proof allocates the risk of an erroneous “ultimate decision,” Colorado, 467 U.S. at 315-16, which may not be determined by specific underlying findings.

In the context of obviousness specifically, it has similarly been suggested that the burden of proof applies only to underlying factual findings, and not to the ultimate conclusion of obviousness.  There again appears to be some support for this suggestion.  See, e.g.,Washburn & Moen Mfg. Co. v. Beat ‘Em All Barbed-Wire Co., 143 U.S. 275 (1892); SSIH Equipment S.A. v. U.S. Intern. Trade Comm., 718 F.2d 365, 375 (Fed. Cir. 1983); Newell Cos. v. Kenney Mfg., 864 F.2d 757, 767 (Fed. Cir. 1988).  However, a jury instruction applying a highly probable burden to factual findings underlying obviousness would raise a number of practical complications.  As an example, the patentee bears a burden of  production with respect to almost all secondary considerations of obviousness. See, e.g.,Demaco Corp. v. F. von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir. 1988) (patentee bears a burden to produce evidence establishing a nexus between commercial success and the patented invention).  Instructing the jury that the alleged infringer must prove that it is highly probable that the patented invention was not commercially successful would be impractical and ignore the patentee’s burden on that issue.  As another example, the level of ordinary skill in the art must be determined during claim construction, during an infringement analysis under the doctrine of equivalents, and during an analysis of obviousness.  See Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (claim construction); Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co., 520 U.S. 17, 36-37 (1997) (doctrine of equivalents).  Applying a burden of proof to the level of ordinary skill in the art raises the possibility of inconsistent findings on that issue depending on which analysis is being performed.

In light of the standard practice of applying the burden of proof to obviousness as a whole, the impracticality of applying the burden of proof to underlying factual findings, and the questionable nature of case law offered to support a contrary position, the Committee has applied the burden of proof to claims and defenses as a whole in these instructions.

5.10 OBVIOUSNESS—(Alternative)

In this case, [the alleged infringer] contends claims [   ] of the [XXX] patent are invalid as obvious.  A patent claim is invalid if the claimed invention would have been obvious to a person of ordinary skill in the field of the invention [at the time the application was filed] [as of [insert date]].  The court, however, has the responsibility of determining whether a patent claim was obvious based on your determination of several factual questions.

First, you must decide the level of ordinary skill in the field of the invention that someone would have had at the time the claimed invention was made.

Second, you must decide the scope and content of the prior art.  In determining the scope and content of the prior art, you must decide whether a reference is pertinent, or analogous, to the claimed invention.  Pertinent, or analogous, prior art is defined by the nature of the problem solved by the invention.  It includes prior art in the same field of endeavor as the claimed invention, regardless of the problem addressed by the reference, and prior art from different fields reasonably pertinent to the particular problem with which the claimed invention is concerned. Remember that prior art is not limited to patents and published materials, but includes the general knowledge that would have been available to one of ordinary skill in the field of the invention.

Third, you must decide what difference, if any, existed between the claimed invention and the prior art.

Finally, you must determine which, if any, of the following factors have been established by the evidence:

A.        Factors tending to show nonobviousness:

[1.        commercial success of [  ] due to the merits of the claimed invention];

[2.        a long-felt, but unsolved, need for the solution provided by the claimed invention];

[3.        unsuccessful attempts by others to find the solution provided by the claimed invention];

[4.        copying of the claimed invention by others];

[5.        unexpected and superior results from the claimed invention];

[6.        acceptance by others of the claimed invention as shown by praise from others in the field of the invention or from the licensing of the claimed invention]; and

[7.        disclosures in the prior art that criticize, discredit, or otherwise discourage the claimed invention and would therefore tend to show that the invention was not obvious.]

[8.        other evidence tending to show nonobviousness].

B.        Factors tending to show obviousness

[1.        independent invention of the claimed invention by others before or at about the same time as the named inventor thought of it]; and

[2.        other evidence tending to show obviousness].

[The alleged infringer] must prove that it is highly probable that a claimed invention was obvious.

5.11 SCOPE AND CONTENT - PRIOR ART

[The patent holder] and [the alleged infringer] disagree on whether [identify prior art reference(s)] should be included in the prior art you use to decide the validity of claims [  ] of the [XXX] patent.  To qualify as prior art relevant to the [XXX] patent, these references must be reasonably related to the claimed invention of that patent.  A reference is reasonably related if it is in the same field as the claimed invention or is from another field to which a person of ordinary skill in the field would look to solve a known problem. Remember that prior art is not limited to patents and published materials, but also includes the general knowledge that would have been available to one of ordinary skill in the field of the invention.

5.12 DIFFERENCES OVER THE PRIOR ART

In reaching your conclusion about whether or not claims [  ] would have been obvious at the time the claimed invention was made, you should consider any difference or differences between the [identify prior art reference(s)] and the claimed requirements.

5.13 LEVEL OF ORDINARY SKILL

Several times in my instructions I have referred to a person of ordinary skill in the field of the invention.  It is up to you to decide the level of ordinary skill in the field of the invention.  You should consider all of the evidence introduced at trial in making this decision, including:

  1. the levels of education and experience of persons working in the field;
  2. the types of problems encountered in the field; and
  3. the sophistication of the technology.

[The patent holder] contends that the level of ordinary skill in the field of the invention was [     ].  [The alleged infringer] contends that the level of ordinary skill in the field was [    ].


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