I hope you are all enjoying your week. Interesting topic and video, so many
grey areas in my opinion.
What are the criteria required for a patent? a Based on our reading material
this week a patent “protects product process, machine, or plant produced by
asexual reproduction” (Kubasek et al., 2019). There are four areas of criteria to
be meet for a patent to be considered.
1. Patent subject matter must be patentable meaning under Section 101 of
the Patent Act, there are four types of inventions that are patentable:
namely processes, machines, articles of manufacture, and compositions
of matter (n.d., BitLaw)
2. Patent object must be new (novel)
3. Patent object must be useful (unless it is a design)
4. Patent must be nonobvious – meaning the average person couldn’t have
discovered this.
What I found to be lacking in this case was that the object of the patent was not
new or novel. a Many companies have utilized proprietary customer data for
marketing advantages along with software to help them build customer
profiles. a Take for example Zappos,com which was founded in 1999 – who by
right, could contest that they are indeed the patent holders of online shoe
buying.
Secondly, and perhaps a bit harder to prove is that the patent is nonobvious. a
There are many small business owners that have created similar platforms for
online ordering that are used in the same fashion.
What did the judge decide and her reasoning? In this case the judge
decided that the defendant did infringe, most likely unintentionally, of the
patent presented by the plaintiff because the practices where identical to the
defendant’s platform and had no identifiable differentiators of use from that of
the plaintiff who holds the patent. The Judge also proclaimed that the
plaintiff’s patent itself was invalid because under the criteria of patent law, the
plaintiff’s patent claim was neither novel nor nonobvious.
Do you agree with the judge's decision? Why or why not?
In this case I do agree with the judge’s decision in that (1) the defendant
infringed even unknowingly because his process replicated that of the
plaintiff’s specifically of “online shoe buying”. a I also agree that the patent
itself is invalid because the plaintiffs patent is not novel and is obvious even to
someone like me, who is not a “sharp” user of the internet. She basically
replicated a sales and marketing scheme that any brick-and-mortar salesperson
would present while trying to sell a pair of shoes, or any other item.
References:
Bitlaw. Patent Requirements (BitLaw). (n.d.). Retrieved March 24, 2022, from
https://www.bitlaw.com/patent/requirements.html#statutory
Kubasek, N. K., Browne, M. N., Herron, D. J., Dhooge, L. J., & Barkacs, L. L.
(2019). Dynamic Business Law. McGraw Hill .
Nicolás, M. (2018, February 21). Succcessful ecommerce case: The history of
Zappos. Oleoshop. Retrieved March 24, 2022, from
https://www.oleoshop.com/en/blog/succcessful-ecommerce-case-the-
history-of-zappos
