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Motivation for the Federal Circuit Test - page 15 / 35





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Importance of Objective Indicia

Finally, we see the continued use of Graham factors as indicia of “invention” by both courts. An example which cites other relevant precedent is In Re Rowell. 44

“There is nothing in the record to show that any special effort was made to place the Rowell magnet in commercial use; yet it is employed extensively and has in effect displaced all other magnets. This is significant. A discovery which is "generally accepted as so great an advance over any process known before that, without puffing or other business exploitation, it promptly came into extensive use, *** and that, because of its economy and simplicity, it has largely replaced all earlier processes," furnishes "persuasive evidence of that invention which it is the purpose of the patent laws to reward and protect." This court has spoken to like effect in Re Thomson, 26 App. D. C. 419, 425, wherein it is said: "The testimony going to show the practical success of the applicant's combination, the truth of which is substantially conceded, is entitled to material weight. Owing to the very serious difficulties which appear to have been successfully overcome by the applicant, other electrical train– lighting systems have not gone into general use. The demand for an improved system has been an urgent one for years, and yet no other inventor, or electrical expert, with all the knowledge afforded by prior patents and constructions, has succeeded in devising a system answering this demand. *** It may be laid down as a general rule, though perhaps not an invariable one, that, if a new combination and arrangement of known elements produce a new and beneficial result never attained before, it is evidence of an invention." Judge Sanborn, speaking for the court in Luminous Unit Co. v. Freeman– Sweet Co., 249 Fed. 876, 877, said in response to an attack on the patentability of an invention: "Where many failed, one has succeeded, and in so brilliant a fashion as to suggest the presence of the magic touch which is invention." With some modification the same language may be applied to Rowell in the present case. 45

The CCPA – 1929 to 1982

Important Traditions of the Court

In 1929, the United States Court of Customs and Patent Appeals (CCPA) assumed exclusive jurisdiction over appeals from the patent office. The CCPA retained jurisdiction until 1982 when the Federal Circuit was created. During the fifty-three year period the CCPA refined TSM and related concepts to some extent, but did not substantially change them. In addition, the CCPA firmly fixed several important traditions in patent law regarding precedent and discussions found in CCPA decisions. Decisions of the D.C. Circuit indicate the D.C. Circuit was already practicing these

44 45

48 App. D.C. 238, (D.C.Cir.1918). 48 App. D.C. at 240-241. (citations omitted)


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