Lead Opinion
DyStar Textilfarben GmbH & Co. Deutschland KG (“DyStar”) sued defendants C.H. Patrick Co. and Bann Química Ltda. (collectively, “Bann”) in the United States District Court for the District of South Carolina, alleging direct, contributory, and induced infringement of U.S. Patent No. 5,586,992 (“the '992 patent”),
The parties agreed to a jury trial before a magistrate judge. Prior to charging the jury and in open court, the magistrate judge granted DyStar’s motion for judgment as a matter of law (“JMOL”) that it had not engaged in inequitable conduct before the United States Patent and Trademark Office (“PTO”). The jury rendered a verdict that “Bann Química and/or C.H. Patrick” had infringed each of claims 1-4, assessed damages at $90,000, and declined to hold the '992 patent claims invalid for lack of enablement, anticipation or obviousness. DyStar Textilfarben GmbH & Co Deutschland KG v. C.H. Patrick Co., Civ. No. 6:02-2946-WMC (D.S.C. Sept. 16, 2005).
Following briefing, the magistrate judge denied Bann’s motions for JMOL or, alternatively, a new trial on the question of invalidity of the '992 patent for anticipation, obviousness, and lack of enablement. DyStar Textilfarben GmbH & Co Deutschland KG v. C.H. Patrick Co., Civ. No. 6:02-2946-WMC (D.S.C. Nov. 1, 2005). The magistrate judge did not issue an opinion. His order stated:
The jury diligently considered the evidence presented and found for the plaintiff. This court concludes that the jury’s verdict was reasonable and was supported by evidence in the record. Therefore, as this court has great respect for trial by jury and the right of the parties to request a jury trial, this court will not substitute its findings for those of the jury as the jury’s decision was clearly supported by the trial record and was reasonable.
Id.
Bann appeals from the denials of its motions on anticipation and obviousness, and the grant of JMOL to DyStar regarding inequitable conduct. For the reasons explained below, we reverse the district court’s denial of Bann’s motion for JMOL of invalidity of claims 1-4 for obviousness.
I
Indigo has been used in dyeing textile materials for thousands of years. Because indigo pigment is insoluble in water, it must be de-oxidized, or “reduced,” to a water-soluble white form known as “leuco indigo” before it can be used in dyeing. Leuco indigo is unstable; it oxidizes and returns to its blue pigment form when exposed to oxygen. Thus, leuco indigo solution needs to be kept in an oxygen-free environment, or otherwise stabilized, if it is not being used immediately for dyeing.
For many years, dyehouses commonly reduced indigo in-house through a process known as hydrosulfite reduction. Dyers created a “stock vat,” in which indigo is reduced in water with sodium hydrosulfite and solubilized with an alkali, e.g., sodium hydroxide. The resulting leuco indigo solution is then transferred into a feed tank and fed into the dyebath. After the dye-bath is prepared, the textile material is dyed through a process known as “dipping” and “skying.” In “dipping,” the textile material is contacted with leuco indigo in the dyebath; in “skying,” the dyed textile material is introduced to the air, causing the indigo to convert back to its blue pigment form.
A second common method of indigo reduction, catalytic hydrogenation, was patented by Andre Brochet in 1917. See U.S. Patent No. 1,247,927 (“Brochet”). The superficial difference between hydro-sulfite reduction and catalytic hydrogenation is that the latter uses gaseous hydro
The process of dyeing textile materials with catalytically hydrogenated leuco indigo traditionally has involved six steps: (1) reducing indigo to its leuco form in solution; (2) stabilizing the leuco indigo solution, usually in paste or powder form; (3) creating a preparation tank in which the dried leuco indigo is re-converted to solution form; (4) adding the solution to the dyebath; (5) dipping; and (6) skying.
Claim 1 of the '992 patent, the only independent claim at issue, recites:
A process for dyeing cellulose-containing textile material with indigo which comprises
a) introducing into a dyebath an aqueous solution of leuco indigo solution prepared by catalytic hydrogenation;
b) contacting the textile material with the dyebath; and, after the leuco indigo has gone onto the textile material,
c) converting said leuco indigo back into the pigment form in a conventional manner by air oxidation.
’992 patent, eol.6, 1.66-eol.7, 1.6. The '992 patent thus improved upon the prior art by eliminating steps two and three of the traditional process: stabilizing the leuco indigo solution into a paste or powder form, and then reconstituting the solution in a preparation tank. Instead, it allowed a dyer to pour prereduced indigo solution directly into a dyebath and commence dyeing immediately.
II
Bann appeals from the denials of its motions on anticipation of claim 1 and obviousness of claims 1-4, and the grant of DyStar’s JMOL of no inequitable conduct. We review decisions on motions for JMOL and motions for a new trial under the law of the regional circuit. MicroStrategy, Inc. v. Bus. Objects, S.A.,
Bann asserts that claim 1 of the '992 patent is invalid because it is anticipated by Brochet. Bann further argues that claims 1-4 are invalid as obvious in light of Brochet and certain other prior art, including two pre-1917 BASF patents—United States Patent Nos. 820,900 (“Wimmer”) and 885,978 (“Chaumat”), a post-World War II report of the British Intelligence Objectives Sub-Committee (“BIOS report”), and the 1936 Manual for the Dyeing of Cotton and Other Vegtable Fibres (“Manual”), published by General Dyestuff Corporation. We address the broader argument, relating to obviousness, first.
A
A determination that a claimed invention would have been obvious, and thus the patent issued thereon invalid, is a legal conclusion that we review de novo. Richardson-Vicks, Inc. v. Upjohn Co.,
Underpinning this legal inquiry are four groups of factual findings, which, in a jury trial, we review for substantial evidence. Richardson-Vicks,
This court has articulated a subsidiary requirement for the first Graham factor, the scope and content of the prior art. SIBIA Neurosciences, Inc. v. Cadus Phar-ma. Corp.,
As we recently explained in Alza Corp. v. Mylan Labs., Inc., No. 06-1019,
In contrast to the characterization of some commentators, the suggestion test is not a rigid categorical rule. The motivation need not be found in the references sought to be combined, but may be found in any number of sources, including common knowledge, the prior art as a whole, or the nature of the problem itself. In re Dembiczak,
For one to conclude that the invention of the '992 patent would have been obvious, then, the prior art, common knowledge, or the nature of the problem, viewed through the eyes of an ordinary artisan, must have suggested the following steps: (1) creating leuco indigo solution through catalytic hydrogenation; (2) stabilizing the leuco indigo in solution form; (3) adding the leuco indigo solution directly into a dyebath; (4) dipping; and (5) skying. Because the jury did not make explicit factual findings in the form of answers to written interrogatories or special verdicts, we must discern the jury’s implied factual findings by interpreting the evidence consistently with the verdict and drawing all reasonable inferences in DyStar’s favor. Konkel v. Bob Evans Farms Inc.,
B
Bann’s obviousness argument rests primarily on three U.S. patents: Brochet, Wimmer, and Chaumat. Brochet is directed to “the Manufacture of Leuco Derivatives of Vat Dyestuffs” generally, of which indigo is one. Brochet, 11.6-7. By its plain language, Brochet discloses the process of preparing an aqueous solution of leuco indigo by catalytic hydrogenation. There can be no serious dispute that the ultimate use of a “dyestuff” is dyeing textile materials; indeed, the '992 patent inventor, Georg Schnitzer, testified that leuco indigo solutions were known to be used in 1917 for dyeing, and Dr. Richard Blackburn, one of DyStar’s technical experts, testified that BASF began reducing indigo with catalytic hydrogenation, and selling the reduced indigo to dyehouses, in 1926. Moreover, both parties agree that dipping and skying were well known in the art. As explained supra, when indigo is reduced in-house in a stock vat, the resulting leuco indigo solution is introduced directly into the dyebath without first being stabilized through drying. Thus, the critical issue in our obviousness analysis is whether stabilizing catalytically reduced leuco indigo in solution form, rather than in powder form coated with molasses, for example, renders the claimed process nonobvious to one of ordinary skill in the art.
1. Level of Ordinary Skill in the Art
Because the parties disagree over the relevance of the cited prior art, which,
DyStar points to testimony from Dr. Blackburn that “[a] person of ordinary skill in the art is a dyer”, someone with “a high school degree” who is “able to read and write”, but whose knowledge is limited to “flipping the switches” on the machine. Dr. Blackburn also testified, however, that a person of ordinary skill in the art was “running the dye processes”, which required, inter alia, “doing the calculations”. When confronted with the inconsistency between his testimony regarding the applicable level of skill during cross-examination, Dr. Blackburn stated that “it’s difficult to say” which of the two skill levels should be applied to the obviousness inquiry. Dr. Blackburn explained that “those people may do both jobs”, but concluded by stating, “I think the former [i.e., the person ‘flipping the switches’]” is the ordinary artisan. Thus, the jury had evidence before it of two potential levels of ordinary skill: (1) that of a dyer and (2) that of a person creating the dye processes, who we will refer to as a dyeing process designer.
DyStar presented evidence that The Application of Vat Dyes, a book by the American Association of Textile Chemists and Colorists, teaches people how to dye and is a text that a dyer would have had at the time of the '992 patent invention. Dr. Nolan Etters, Bann’s expert witness, agreed that “a person of ordinary skill in the art” would be a member of the American Association of Textile Chemists and Colorists and conceded that none of the prior art cited by Bann is referenced in The Application of Vat Dyes.
We agree with DyStar that we are required to assume the jury accepted its argument that a person of ordinary skill in the art is a dyer with no knowledge of chemistry. Because the jury heard testimony that the prior art cited by Bann was directed toward chemists, not dyers, the jury must have found the prior art cited by Bann neither in the relevant art nor analogous arts and then, consistent with the limited evidence of prior art deemed relevant, concluded that the process claimed in the '992 patent would not have been obvious.
However, substantial evidence does not support the jury’s finding that a person of ordinary skill is a dyer with no knowledge of chemistry. Indeed, that factual finding is inconsistent with the '992 patent’s very purpose. The technical problem that the process of the '992 patent and the prior art cited by Bann sought to solve is precisely the same: an improved process for dyeing textile materials with indigo. This process includes several discrete subcomponents— e.g., indigo reduction and dyebath preparation — and an ordinary artisan would be concerned with all of them. To beneficially practice the dyeing process claimed in the '992 patent, the ordinary artisan must have a higher-level perspective, as he must first decide whether it is more efficient to reduce indigo in-house or purchase prere-dueed indigo and, if prereduced, must then decide whether solid or solution form is preferable.
Designing an optimal dyeing process requires knowledge of chemistry and systems engineering, for example, and by no means can be undertaken by a person of only high school education whose skill set is limited to “flipping the switches”. This is especially true when one considers that only in the last century have improve-
2. Scope and Content of Prior Art
Where, as here, claim limitations are found in a combination of prior art references, the factfinder must determine “[w]hat the prior art teaches, whether it teaches away from the claimed invention, and whether it motivates a combination of teachings from different references”. Fulton,
To support its argument that an ordinary artisan- — i.e., a dyeing process designer — would have known to attempt to stabilize the Brochet solution in oxygen-excluding conditions for addition directly into a dyebath, Bann points to two pre-Brochet BASF patents. Wimmer, issued in 1906, discloses a leuco indigo solution that “can be filtered and the filtrate (which contains a high percentage of indigo white) can be placed on the market without any further treatment”, in contrast to reduction using zinc, which required the solution “to be separated before the solution can be used for dyeing.” Wimmer, 11.34-40. Chaumat, issued in 1908, discloses a leuco indigo solution that “may be drawn off protected from the air and preserved indefinitely in receptacles which are either soldered or closed in any other hermetic manner.” Chaumat, 11.84-87. Although Wimmer and Chaumat disclose different reducing methods than Brochet — Wimmer suggests the use of iron, rather than zinc, as a reducing agent, and Chaumat discloses an electrolytic process for indigo reduction — Bann argues that once the indigo has been converted to its leuco form, the distinction is irrelevant for dyeing purposes. Accordingly, Bann argues that this prior art would teach an ordinary artisan in the field of indigo dyeing process design to attempt to stabilize any leuco indigo solution, however reduced, for addition directly into the dyebath.
a. What does the prior art teach?
DyStar argues that because Wim-mer and Chaumat involve different methods of reducing indigo, they are nonanalo-gous art and properly disregarded by the jury. In support of this assertion, Mr. Schnitzer testified that, up until the time of the invention, BASF’s “people from production” believed that leuco indigo created from catalytic hydrogenation was too unstable to be added directly to the dyebath, and might “stain the yarn with indigo pigment” or “block[ ] pipes”. DyStar offered evidence that, prior to the '992 patent, BASF had limited its sales of catalytically hydrogenated leuco indigo to that stabilized in paste or solid form. Thus, argues DyStar, the language in Wimmer and Chaumat suggesting that the solution could be stabilized and sold in solution form does not apply to catalytically hydrogenated leuco indigo solution.
We disagree. As explained supra, the proper focus is on the indigo dyeing process as a whole, which requires the ordinary artisan to consider (and choose between) the various indigo reduction methods. The '992 patent is directed to
b. Does the prior art teach away from the claimed invention?
We reject DyStar’s assertion that contemporaneous articles by Wimmer and Broehet teach away from the combination of Broehet and Chaumat, and thus the claimed process. DyStar acknowledges that no specific language in these references teaches away from the invention of the '992 patent. Rather, because these references do not discuss the stabilization of leuco indigo solution (in solution form) for immediate addition to a dyebath, DyS-tar somehow concludes that these references teach that leuco indigo solution “cannot be used to dye but is instead useful only as an intermediate.”
Although Wimmer’s contemporaneous article only describes the use of indigo solution as an intermediate product, he does not retract his patent language indicating that “the solution can be filtered and the filtrate (which contains a high percentage of indigo white) can be placed on the market without any further treatment”. Wimmer, 11.38-37. Likewise, the Broehet patent, directed toward all vat dyestuffs, broadly teaches that the process “produee[s] mother-liquors which can be diluted immediately before use, or be treated by evaporation under reduced pressure or by any other means to obtain concentrated products for sale.” Broehet, 11.66-70. This language implies that all vat dyestuffs, including indigo, may either be used immediately for dyeing or concentrated prior to sale. In his contemporaneous article, Broehet stated that his catalytically hydrogenated solution could be used “economically to obtain concentrated indigo white [i.e., leuco indigo] solutions that are free of impurities and alkaline salts, that can be concentrated in vacuum in order to obtain white indigo as a paste”. This mere failure to discuss immediate use of his leuco indigo solution for dyeing is not the same thing as Broehet stating in his article that, though most dyestuffs may be used immediately or stored in oxygen-excluding containers, his leuco indigo solution may only be concentrated in paste form. We will not read into a reference a teaching away from a process where no such language exists.
c. Is there a motivation to combine?
DyStar argues that this court’s “suggestion test” for obviousness requires the cited references themselves to contain a suggestion, teaching, or motivation to combine them, and that it must be explicitly stated. DyStar then points out, correctly, that Broehet does not suggest combining his invention with those of Chaumat or Wim-mer to stabilize his leuco indigo solution in oxygen-excluding containers until either using it directly in the dyebath or placing it on the market for sale, respectively.
DyStar’s argument misreads this court’s cases and misdescribes our suggestion test, echoing notions put forth recently by various commentators and accepted in major reports. A 2003 report by the Federal Trade Commission, for example, quoted testimony of certain witnesses that this court requires “specific and definitive [pri- or] art references with clear motivation of how to combine those references” and requires the PTO to find “the glue expressly leading you all the way [to obviousness]” and “connect the dots ... very, very clearly.” Fed. Trade Comm’n, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy ch. 4, at 11 (2003). Similarly, a 2004 report by the National Academy of Sciences summarized views of a few commentators that “standards of patentability — especially the non-obviousness standard — have become too lax as a result of court decisions” by the Federal Circuit, leading to the deterioration of patent quality. Nat’l Research Council, A Patent System for the 21st Century 3 (Stephen A. Merrill et al. eds., 2004). But see Am. Intellectual Prop. Law Ass’n, AIPLA Response to the National Academies Report entitled “A Patent System for the 21st Century” 10 (2004) (“AI-PLA believes that the courts, including the Federal Circuit, have applied the standard of non-obviousness with both the needed rigor and the appropriate vigor, and they have done so with a commendable consistency over the past two decades. If a difficulty exists with application of the non-obviousness standard today, it does not lie in the patent statute or in substantive law of non-obviousness as applied in the courts.”)
Seeking to support their assertions about Federal Circuit caselaw, these few commentators have quoted isolated statements from three of our precedents in particular, including Dembiczak,
1) in the prior art references themselves;
2) in the knowledge of those of ordinary skill in the art that certain references, or disclosures in those references, are of special interest or importance in the field; or
3) from the nature of the problem to be solved, leading inventors to look to references relating to possible solutions to that problem.
Id. at 665 (emphasis added) (internal quotation marks omitted).
Despite containing arguably imprecise language in these statements, quoted out of context, each of the above-cited cases correctly applies the suggestion test and by no means requires an explicit teaching to combine to be found in a particular prior art reference. Dembiczak involved the combination of a reference in the plastic trash bag art with children’s arts and crafts books that included, among innumerable fanciful drawings, jack-o-lanterns.
In Ruiz, as in Dembiczak, we vacated a conclusion of obviousness because the fact-finder failed to make Graham factor findings.
Likewise, a close reading of In re Lee reveals that our objection was not to the Board’s statement that “[t]he conclusion of obviousness may be made from common knowledge and common sense of a person of ordinary skill in the art without any specific hint or suggestion in a particular reference”, but its utter failure to explain the “common knowledge and common sense” on which it relied. See
It is difficult to see how our suggestion test could be seen as rigid and categorical given the myriad eases over several decades in which panels of this court have applied the suggestion test flexibly. Obviousness is a complicated subject requiring sophisticated analysis, and no single case lays out all facets of the legal test. DyS-tar’s argument and the above-cited commentary highlight the danger inherent in focusing on isolated dicta rather than gleaning the law of a particular area from careful reading of the full text of a group of related precedents for all they say that is dispositive and for what they hold. When parties like Dystar do not engage in such careful, candid, and complete legal analysis, much confusion about the law arises and, through time, can be compounded.
Our suggestion test is in actuality quite flexible and not only permits, but requires, consideration of common knowledge and common sense. See, e.g., In re Kotzab,
Indeed, we have repeatedly held that an implicit motivation to combine exists not only when a suggestion may be gleaned from the prior art as a whole, but when the “improvement” is technology-independent and the combination of references results in a product or process that is more desirable, for example because it is stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient. Because the desire to enhance commercial opportunities by improving a product or process is universal — and even commonsensical — we have held that there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves. In such situations, the proper question is whether the ordinary artisan possesses knowledge and skills rendering him capable of combining the prior art references.
In Pro-Mold & Tool Co., Inc. v. Great Lakes Plastics, Inc.,
Similarly, in Sandt Tech., Ltd. v. Resco Metal & Plastics Corp.,
In Mazzari v. Rogan,
In situations where a motivation to combine is based on these principles, the invention cannot be said to be nonobvious. Our precedent on this point, moreover, is consistent with the Supreme Court’s holdings in Graham and three other obviousness decisions pre-dating the establishment of this court. See Sakraida v. Ag Pro, Inc.,
In Anderson’s-Black Rock, the Supreme Court held invalid for obviousness a patent covering (1) a radiant burner for heating asphalt (2) attached to the front of a standard asphalt-paving machine. Both elements were well-known in the prior art individually, with the difference being that previously, radiant-heat burners were not used in paving, but merely for patching limited areas of asphalt.
Likewise, in Sakraida, the Supreme Court held invalid for obviousness a patent for a barn having “a paved, sloped barn floor with downhill drains”, “elevated” cow stalls, and a “dam” behind which water may be stored and abruptly released in order to “send a sheet of water cascading through the dairy sweeping the manure to the downhill drains.” Ag Pro, Inc. v. Sak-
In Adams, a companion case to Graham, the Supreme Court upheld the validity of a patent for a non-rechargeable water-activated battery having magnesium and cup-rous chloride electrodes. Adams,
To combine [the references] as did Adams required that a person reasonably skilled in the prior art must ignore that (1) batteries which continued to operate on an open circuit and which heated in normal use were not practical; and (2) water-activated batteries were successful only when combined with electrolytes detrimental to the use of magnesium.
Id. at 51-52,
Although this court customarily discusses a motivation to combine as part of the first Graham factor, the scope and content of the prior art, see SIBIA Neurosciences,
A dyeing process designer would have been aware that reducing leueo indigo in-house was time-consuming as well as expensive and that it created much pollution
3. Secondary Considerations of Nonobviousness
The presence of certain secondary considerations of nonobviousness are insufficient as a matter of law to overcome our conclusion that the evidence only supports a legal conclusion that claim 1 would have been obvious. To be sure, the jury heard testimony that DyStar has enjoyed considerable commercial success from the introduction of its product, and all parties agree that eighty years elapsed between Bro-chet’s invention and another inventor’s thought to vacuum-seal the Brochet solution and add it directly to the dyebath. However, Mr. Schnitzer’s testimony that BASF’s “people from production” — who we here assume arguendo were dyeing process designers — believed that leuco indigo solution added directly to the dyebath might “stain the yarn with indigo pigment” or “block[] pipes” was a bare assertion that is not only undocumented and nonspecific, but also unsupported by even a brief explanation of the chemistry underlying this assumption. As such, it does not constitute substantial evidence of a secondary consideration favoring nonobviousness.
Moreover, another secondary consideration cited by DyStar — i.e., failed attempts — actually detracts from its argument, and heavily so. DyStar points out that another chemical company, Buffalo Color, abandoned a 1979 effort to market a prereduced indigo solution made by hydro-sulfite reduction. The record shows, however, that Buffalo was only mildly concerned with instability problems — it noted only that the instability of leuco indigo “would require special (and costly) shipping conditions to protect it from oxidation”. Rather, Buffalo decided against selling a leuco indigo solution because it would involve increased shipping costs, might require customers to invest in addi
C
Our inquiry does not end here, however, because we must evaluate obviousness on a claim-by-claim basis. Dayco Prods., Inc. v. Total Containment, Inc.,
Claims 2-4 depend from process claim 1. Claim 2 requires that the resulting solution contain from 10% to 35% by weight of leuco indigo; claim 3 requires that the solution contain from 2% to 10% by weight of alkali; and claim 4 requires that the solution contain from 2% to 10% by weight of sodium hydroxide. Dr. Blackburn, DyStar’s own expert witness, confirmed that the plain language of Wimmer sets forth a “30 percent aqueous solution of leuco indigo”, which falls within the range prescribed by claim 2. Dr. Blackburn also testified that the solution disclosed by Wimmer contains “5.1 percent” by weight of alkali — the claim language says “at least six and a half percent”, both of which fall between 2% and 10%, as required by claim 3. Likewise, Wimmer indicates that his example solution uses “NaOH”, sodium hydroxide, and Mr. Schnitzer agreed with Bann’s counsel’s assertion that the term “caustic” is “chemically the same thing as sodium hydroxide”, which meets the requirement of claim 4. DyStar does not dispute these concessions on appeal. Thus, given DyStar’s testimony and the plain language of Wimmer, claims 2-4 do not recite a nonobvious invention beyond that recited in claim 1. Accordingly, claims 2-4 must also be held invalid for obviousness as a matter of law.
Ill
In sum, because an ordinary artisan is a person designing an optimal textile dyeing process with some expertise in chemistry, the jury’s implicit finding that the level of ordinary skill in the art is a dyer is unsupported by substantial evidence; its corresponding decision to disregard the primary cited prior art as nonanalogous was also erroneous. Under the correct level of ordinary skill, it would have been obvious from Chaumat and Brochet, in view of Wimmer and other references, to stabilize catalytically hydrogenated leuco indigo solution through vacuum conditions and to introduce the solution directly into the dyebath.
Because all claims are held invalid for obviousness, we need not address alleged anticipation of claim 1 or lack of enablement as to claims 1^4. Likewise, whether the '992 patent is unenforceable due to inequitable conduct need not be decided. Finally, we do not address the request for a new trial as all asserted claims are held invalid as a matter of law for obviousness. Accordingly, the trial court’s denial of JMOL that claims 1-4 of the '992 patent are invalid for obviousness is reversed.
REVERSED.
Concurring opinion filed by Circuit Judge SCHALL.
Notes
. BASF was the assignee of the '992 patent. BASF divested its dyestuff business, including the '992 patent, to DyStar in 2000.
. Because the only difference between the claimed invention and the cited prior art is the method of indigo reduction, which we have held is irrelevant to an indigo dyeing process employing prereduced indigo, we do not separately discuss this second Graham factor.
. Indeed, the United States Supreme Court recently granted certiorari in a case involving this court's application of the suggestion test. KSR Int’l Co. v. Teleflex, Inc., - U.S. -,
. We vacated the district court's grant of summary judgment of invalidity for other reasons, finding genuine disputes of material fact on the issue of commercial success. Id. at 1573.
Concurrence Opinion
concurring.
I concur in the judgment of reversal. See Alza Corp. v. Mylan Labs., Inc., No. 06-1088,