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CAFC Happenings

By John L. Rogitz of Rogitz & Associates

John Rogitz has conducted extensive domestic and foreign prosecution in the areas of computer hardware and software for high-tech institutions. He has also conducted extensive patent prosecution in the biomed field, including medical instrumentation, as well as in the fields of superconductors, magnetic resonance imaging, materials and consumer electronics. Mr. Rogitz can be reached at 619-338-8075.

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Design Patent Infringement: To show design patent infringement, must show that (1) the ordinary observer would consider accused design to be substantially the same as the patented design, and (2) the accused design appropriates the "point of novelty" of the patented design over the prior art; point of novelty "must be a non-trivial advance over the prior art", meaning that the test "is not especially different from" the obviousness inquiry, Egyptian Goddess, Inc. v. Swisa, Inc., no. 2006-1562.

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Obviousness; Secondary Indicia: Board rejection reversed for not considering affidavits of secondary indicia of non-obviousness of claims to "antivenom"; Board had refused to consider affidavits allegedly because they were drawn to an "intended use" feature of the claims entitled to no patentable weight, but CAFC, in a somewhat opaquely worded opinion, appe...

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