In Re Construction Equipment Co.

EQUIPMENT In re CONSTRUCTION

COMPANY.

No. 2010-1507. 90/008,447. No.

Reexamination Appeals, Court

United States Circuit.

Federal Heuser, & E. Schwabe Williamson Peter 8, 2011. Dec. PC, Portland, OR, argued for Wyatt Dec. As Corrected De- With him on the brief was appellant. von Zastrow Newman. Solicitor, Lynch, Associate

Frances M. and Trademark Of- States Patent United Alexandria, VA, fice, argued appel- for Raymond the brief lee. her on With Chen, Solicitor, Gongola, and Janet A. T. Solicitor. Associate NEWMAN, PROST, and Before O’MALLEY, Judges. Circuit filed Opinion the court Circuit Dissenting filed Judge opinion PROST. Judge NEWMAN. Circuit PROST, Judge. Circuit Equipment Company Construction (“CEC”) reexamination pro- from appeals ceedings which the United States (“PTO”) rejected and Trademark Office sought by parte Ex numerous claims CEC. Co., No. (“BPAI (B.P.A.I.2009) Op.”), WL 2807871 (B.P.A.I. denied, 2010 WL reh’g 2010) ”). {“Reh’gDenial Because May agree with the PTO’s conclusion we over the the claims at issue were obvious art, we affirm. I Patent No. is the owner of CEC U.S. (“'564 5,234,564 patent”). The '564 Assembly for Screen is entitled “Mobile Debris,” and is directed Rubble mat- screening plant rocks and vehicle (among things) ter other based size

from, example, or soil dirt at con-

struction site.

'564 to fig.l. appealed Material be sorted is to the Board of Appeals placed hopper in It up Interferences, 30. is carried which generally af- conveyor 26 by transport dropped firmed rejections. the Examiner’s BPAI 90, assembly Op. onto screen which sifts it. sought rehearing, CEC which the Sorted material either descends down Board Reh’g timely denied. Denial. CEC 120, away by conveyors chute or is appealed carried to jurisdic- this court. haveWe 168, 130 or according where tion over the Board’s decisions under 28 sifting process 1295(a)(4)(A). § sorted material left the U.S.C.

main stream. II proceedings began in Janu- This court reviews the Board’s fac ary 2007 request when PTO received a tual findings for substantial evidence and parte ex reexamination of the '564 legal its determinations de novo. 5 U.S.C. patent.1 requestor sought reexamina- 706(2)(E); Gartside, § In re 203 F.3d 1, 2, 5-8, claims alleging 1305, 1316 (Fed.Cir.2000). The determina unpatentable. they Upon were finding tion of awhat reference teaches is one that the request raised substantial new fact, as is the existence of a reason for a question of patentability concerning those person ordinary skill combine refer claims, began the PTO pro- reexamination Dement, Rapoport ences. ceedings. (Fed.Cir.2001); see also Gart CEC made various amendments and side, 203 F.3d at 1316. This appeal added claims. concerns claims 14, 19, Applying here, as amended. standard we see By the end of reexamination in error of fact law October neither nor in the 2007, all rejected by these claims stood analysis the Board’s of these claims’ patenta bility. Examiner as obvious under Reviewing art, 35 U.S.C. record we § agree every view the various references Board that limitation request. cited of each CEC claim on is found in one request against infringement. CEC claims that was initiated further Ltd., company called Powerscreen International Co. v. Int’l Powerscreen Distrib. ("Powerscreen”). (D.Or.1997), U.S.P.Q.2d Distribution Ltd. CEC had without aff'd patent against (Fed.Cir.2000). op., According asserted the '564 243 F.3d 559 CEC, injunction injunction late 1990s and obtained remains effect. positioning or of conveyors, rial via We references. available another trailer, '564 as the on a ordinary skill machine sorting agree one further combine con- able invention alleged been have art would does. CEC’s to way a as in such references elements available known combining entirely of sists each of invention alleged the practice new, that, possibly while a machine into person that such agree And we claim. therefore and obvious nevertheless was such to make reason had have would opin- Board’s find the We unpatentable.2 by set forth reasons combinations, the for and evidence by substantial supported ion Examiner. by the Board the the opinion of legal error.3 without concepts admits, the basic itself CEC As affirmed. therefore stands Board not new. are sorting material sifting and of AFFIRMED carrying mate- of concepts are the Neither by the contemplated previously not argument, CEC merits oral briefing and at In its application intention, to us indiscreet parties court affirm seems this should its stated attempt any oppose judicial power. to opinion, of the Board injunc- its might have make to Powerscreen Second, disagree constitu- either we that patent lifted the '564 against practicing doc- the common-law principles or tional suggested that court. CEC by district the preclusion bar would or issue of claim trines op- a full and fair had Powerscreen because re patent. In the '564 of reexamination Swanson, validity, patent's litigate '564 the portunity to (Fed.Cir.2008), is 1368 seeking avoid to estopped from be it should highly instructive. patent's fate irrespective that injunction the case, the no error in we found that In opinion express on We no in reexamination. be reexamination could holding that PTO’s might be might or not whether strength that of a reference on the instituted injunction. abrogation of the to seek entitled unsuccessfully as- party requesting had the con the dissent’s unpersuaded are involving 3. We the litigation prior art in as serted hold the reex should court that this tention af- court even where this had patent, case unconsti proceedings this amination judgment of validi- court's the district firmed tutional, of res by considerations or barred included detailed ty. Id. at 1379. Swanson This is preclusion. so judicata or issue statutes the reexamination discussion First, the reex that the notion reasons. three It history Id. at 1376-77. thereof. legislative nei ipso facto unlawful was was amination court's that noted specifically any any party, argued by at nor briefed ther affirmed, was not court this judgment, which appellate courts of stage this case. rejection of incompatible the Examiner's prac judiciary have a well-established federal was The reason on reexamination. claims up arguments not declining take tice that judgment was not court's the district that Singleton v. parties. timely made se, per but valid patent was 2868, 121, 49 96 S.Ct. Wulff, 428 U.S. carry bur- infringer had failed to his accused West, (1976); Boggs F.3d v. L.Ed.2d 1379; also see prove invalid. Id. it den (Fed.Cir.1999). [rule] "This is 1337-38 Co., 713 F.2d & Roebuck Sears Stevenson may parties have in order essential that, (Fed.Cir.1983) (holding this they be all the evidence to offer opportunity reason, ap- generally not preclusion ...; equally it is issues relevant lieve There validity judgments). plicable in litigants may not in order essential between no contradiction was therefore decision there final surprised appeal litigation Examin- affirmed opportu they had no upon have which issues during rejection reexamination. er’s Hormel v. Hel nity evidence.” to introduce us, we no record before see theOn thin 552, 556, 61 S.Ct. vering, 312 U.S. this why control Swanson would reason (1941). CEC case neither In this L.Ed. nor, cases, the reexamination In both case. opportuni had an crucially, the PTO has previously failed party that by a had initiated addressing argument ty to submit evidence litigation. We invalid prove up dissent. To out concerns laid case, that, the reexamination in this note set, also reex proposes, the entire as the dissent combinations, references, numerous argu- strength involved proceeding on the amination NEWMAN, (1982). Judge, dissenting. My Circuit 73 L.Ed.2d 598 colleagues panel object on this to the intru- appeal a fun- This reexamination raises sion of the appeal, Constitution into this adjudication, question final damental —is Maj. n.3, Op. at 1256-57 arguing that the court, after trial and decision the district role of rulings administrative judgment in and final the Fed- proceedings cannot be Circuit, considered because truly final? is it an incon- eral Or parties along the administrative did raise sequential detour path contrary Although However, to a result? and Trademark Office. the na- pre- decisions of courts of last resort are tion’s fundamental law not waivable. courts, within the is the administra- clusive The Court has reiterated “[w]hen agency tive excused? Here the Patent and issue, these Article III at limitations are not pri- Trademark Office did mention the of notions consent and waiver cannot be adjudication issue, although or of the same dispositive because the limitations serve finally that issue was decided the courts institutional interests that the parties can- in 2001.1 The reexamination deci- PTO’s expected not to protect.” Commodity be is on appeal, sion now before us the same Schor, Futures Trading Comm’n v. 478 finally adjudicated issue that we eleven 833, 851, 3245, U.S. 106 S.Ct. 92 L.Ed.2d years ago. (1986). 675 curious, Thus as well as unconstitu- inapplicable “significant Waiver is tional, whereby situation this court’s questions of general impact of great or decision has devolved into uncertain public concern.” Express, Interactive Gift gesture, stripped of value in commerce as Inc., 1323, Inc. v. Compuserve F.3d 256 as in panel majority, unper- well law. The (Fed.Cir.2001). 1345 The constitutional turbed, simply to the agency’s defers new impact of the procedure gives rise to history result as if this not I does exist. waived, this cannot be deemed for respectfully dissent. it affects no less than the integrity of plan judgments and the separation powers. of The constitutional and the principles Constitutional are required ADMINISTRATIVE STATE to be merely they set aside because judicial The were power established in Article III, 1,§ “an raised administrative forum. inseparable is element of the Helvering, 552, system See Hormel v. 312 constitutional checks and bal U.S. Pipeline N. Co. ances.” Constr. v. Mara 85 L.Ed. 1037 (courts Co., Pipe thon Line of appeal U.S. have discretion to Finally, and even claims not treated the district suggestion the dissent’s that a find- Compare Equip. ing court. Co. v. Power proceed- is not invalid in one Ltd., 96-1574, slip op. ing screen Int'l Distrib. No. against party any one would bar other 11, 1998) (D. (reviewing novelty Or. June validity challenge expan- would be dramatic three concept nonobviousness seven claims over sion of the of non-mutual offensive references) Op. (affirming J.A. 97 with BPAI estoppel. We adopt collateral decline to rejection for obviousness of twelve claims rule cases that inconsistent with over various refer governing combinations of seven all regarding other law collateral ences, two which were considered in the estoppel. Thus, litigation). Powerscreen even we were if depart prior holdings 1. Constr. Co. v. Int’l from this court’s con Dis waiver, Ltd.., (Fed.Cir.2000), cerning we do not think we would trib. 243 F.3d 559 cert. denied, up take the dissent’s invitation to find the 531 U.S. 121 S.Ct. (2001). proceeding improper. L.Ed.2d 962 emergence of the administra issues not With not to consider issues consider III, § state, safeguards the “Article may require”). tive justice “as raised below tripartite Branch in our of the Judicial role places the Constitution plan system by barring congressional attempts courts, judg- whose power III jurisdiction ‘to non-Article [to transfer subject revi- not thereafter ments are emasculating’ purpose tribunals] legislative rejection. Neither sion or courts, thereby prevent constitutional authority branch has nor the executive ing aggrandizement ‘the encroachment See Chi. judicial determinations. to revise expense at the of the oth of one branch Lines, Inc. Waterman S.S. & Air S. ” Schor, 850, 106 er.’ S.Ct. 3245 103, 114, 431, 92 68 S.Ct. U.S. Corp., 333 (brackets original, internal citations (1948) (“Judgments, within the L.Ed. 568 omitted). this application rule Judiciary in courts powers vested dispute, disputed not in nor is that ad Constitution, may not lawful- Article of the may authorized to agencies ministrative revised, or refused faith overturned ly be Id. perform quasi-adjudicatory functions. of by Department another Gov- and credit judicial arises because the The issue here U.S., 561, ernment.”); v. Gordon already and performed, function has been 561, 561, (judg- L.Ed. 2 17 921 Wall. finality warrants the of the Judicial Power. and III courts are “final ments of Article As court in Town Deer explained the of rights parties”). the upon the of conclusive Commis v. Federal Communications field Farm, Inc., 514 Spendthrift In Plant (2d sion, 420, Cir.1993), F.2d 428 revi 992 1447, 328 115 131 L.Ed.2d U.S. S.Ct. the of by agency sion the court’s that: (1995), explained the Court previous judgment the order would render advisory” “merely the district court history shows that the The record of in violation of the Constitution. thus judi- of crafted this charter the Framers expressed with an un- department cial the previous judgment Nor is of this derstanding gives the Federal that court, the that taken the on issue to merely rule Judiciary power, the not to reexamination, “merely advisory.” PTO them, cases, subject to on to decide but statute, enacting In the reexamination only by superior courts in the review did violate Congress purport not to consti- hierarchy an Article III under- —with governing strictures issues that tutional short, that “a con- standing, finally adjudicated. previously been had clusively the “a resolves case” because majority’s this Contrary postulate, to the disposi- is one render ‘Judicial Power’ to “upset not ... concern does constitutional judgments.” tive Maj. proceeding,” the entire reexamination Op. at 1256 The concern arises be- n.3. (quoting Id. 1447 115 S.Ct. already this there cause in case has been Easterbrook, Frank H. Presidential Re disposition validity of final issue view, Res. L. Rev. 926 40 Case W. judicial Respect III courts. Article (1990)). history the of Court traced has a final finality, when there been deci- Case, finality judicial Hayburn’s to U.S. sion, ... the entire reex- “upset does (2 Dall.) 409, (1792), 1 L.Ed. 436 which proceeding.” amination Id. principle Congress “stands for the that of Arti cannot vest review of decisions preclusion judicata Res and issue cle III courts in officials of the Executive Plant, finality of principles In addition to the Branch.” 514 U.S. at separation powers, princi- on of based litigation repose of pies are violated the merits of an merits of an action of reopening agency precludes in an administrative parties privies or their from that to litigated finality issues were relitigating issues were or could have judicial proceedings. Throughout been raised in that action. Under collater statutes, evolving reexamination no legisla- al estoppel, once court has an decided suggested might of necessary issue fact or law judg to its decision, judicial ment, overtake final or that may preclude relitiga decision preclusive may effect of such decision tion of the a suit a different The reexamination ignored. statutes of party cause action involving a to the case.”). purport grant do not to PTO first There is no assertion here authority ignore judgments. final Such “extraordinary circumstances” contem adjudicatory structure 60(b), would have plated Fed.R.Civ.P. a rule that contemplated by Congress, been reflects the courts’ power inherent re improperly accepted by court. this their open judgments own in the interest justice. See Liljeberg v. Health Servs. inapplicable against Waiver issues Acquisition Corp., 486 U.S. 108 S.Ct. judicata preclusion, res and issue for pre 2194, 100 (1988): L.Ed.2d principles clusion serve powerful public 60(b)(6) Rule ... grants federal courts finality private interests authority broad party relieve a from proceedings avoidance inconsis judgment “upon such terms as are tent results. See Clements v. Airport just,” provided that the motion is made Cnty., Auth. Washoe F.3d within a reasonable time and (9th is not Cir.1995) (“Vindication public of this premised on one of grounds the for re- interest is at its zenith in the of realm (b)(1) in lief enumerated through clauses preclusion. issue It is the failure to ad (b)(5). Rule particularize does not closely here to basic preclusion prin issue relief, the factors justify that but ... it ciples that likely is most to lead directly provides with authority courts “adequate the inconsistent results that tend to under to enable them to vacate judgments in judicial process.”); mine confidence the whenever such action appropriate v. Northrop Caldera Worldwide Aircraft accomplish justice,” while also caution- Servs., Inc., (Fed.Cir. 192 F.3d 970-72 ing only it should applied be 1999) (applying principles of collateral es “extraordinary circumstances.” on toppel appeal, where an administrative had board determined al anew issue (citations Id. at 108 S.Ct. 2194 court). ready decided in state omitted).

In this judicata case the rules of res preclusion The doctrines of relate to the involved, issue preclusion are re-litigation this reex- of issues that have been actu- requested Powerscreen, amination by ally litigated A party and decided. who the defendant in the prior district court part litigation took the earlier cannot ruling, prior the appellant ordinarily the prejudiced Federal be by subsequently appeal, petitioner Circuit and the being for cer- bound by that decision. See Clem- ents, (“Where tiorari. Powerscreen could not have reliti- 69 F.3d at plaintiffs the gated question any of obviousness in have had a full and fair opportunity to Hotel, court. See City actually San Remo L.P. v. litigate the issue and did in fact S.F., Cnty. it, & 336 n. litigate they ordinarily can not preju- of by L.Ed.2d 315 diced subsequently being held to the (“Under determination.”). judicata, res prior on The interest in fi- case, appealed to Federal Powerscreen in this where highlighted

nality is Circuit, full again briefing validity of upheld previously this court argued that of Powerscreen patent, obviousness. Equipment’s Construction patent are of the '564 invalid majority today claims panel § combinations 103 based several on the same issue. under be invalid holds to pro- to the respect of references. With sued Construc- Powerscreen was When posed combination of Eriksson the de- infringement, Equipment the Royer Trommel '564 with either the challenge pat- to the included a fense art, Equip- prior Trommel Construction of obviousness. validity ground on the ent’s responded ment in the United States The case was tried Oregon. of for the District Court District attempt does show Powerscreen court, cited In Powerscreen merely con- teachings, such but instead compo- various that showed references ... have been obvi- that would tends machine, argued patented nents of existing designs modify “to machine ous been obvious select that it would have simply exchanging type one screen together put them components and these ... assembly with another.” Without ruling In its non- machine. one art any suggestion prior that the obviousness, district court discussed Eriksson, Royer and the best features explained its con- the cited references Trommel 620 would have been combined example: For clusions. recited in claim Power- the manner fail, argument obviousness must screen’s art as combination [T]he court so at JA2009- as the district held Defendants, merely which suggested Royer the loader Trom- combines device of the screening with the

mel Br. 44-45. The Federal Circuit Appellee in the opposite situated Eriksson Patent judgment. affirmed district court’s direction, produce a viable would Int’l Co. machine____The drawing schematic Ltd., (Fed.Cir.2000), Distrib. by Defendants the combination offered denied, cert. necessary deviations from the

includes (2001). L.Ed.2d 962 how prior art but not indicate these does years request later Seven from the prior are obvious alterations ground ed on the of obvi reexamination Accordingly, teachings.... or art ousness, and citing same references portrayal finds Defendant’s of the court references, strongest re placing additional of the Erikkson obvious combination liance on same references that had Royer Trommel Patent and does [sic] However, litigation. cited in the been depositing encompass not the element of litigated judg an issue has been and when top material from the coarsest resort, last ment entered in court of beyond opposite end of the screen of the doctrine underlying rationale “[t]he machine. party who has preclusion of issue and lost be bound litigated v. Powerscreen Int’l issue should Co. Ltd., (D.Or. by demand that No. that decision cannot Distrib. Civ. 96-1574-AS 11, 1998), again.” In re op. 17-19. The the issue be decided over slip June (Fed.Cir. Freeman, 30 F.3d court ruled that the '564 district 1994) (in enforceable, valid, completed in- after willfully reexamination Powerscreen, gave effect litigation, preclusive entered final PTO fringed ruling court’s on claim to the district judgment. scope, although Board stated that it “non-mutual offensive collateral estoppel” the Board stated that did agree barred, must be Maj. Op. at 1257 n.3. The court). These fundamentals of question here is not of non-mutuality, for judicial authority and administrative obli- this reexamination was initiated by for this gation are not subject to vagaries reexamination was initiated by the same shifts in burden of proof standard in party that was defendant the district non-judicial forums, as the panel majority court and Federal Circuit. The question is proposes. Although this aspect was whether the administrative agency is weighed in Swanson, In re 540 F.3d 1368 bound adjudication of the (Fed.Cir.2008), a lower standard proof question issue—a that has been de- in an administrative agency cannot over- finitively answered by Supreme Court. ride the finality judicial adjudication. See Burson Carmichael, 731 F.2d 849, proof burden of assigned to adminis- (Fed.Cir.1984) (“There is no support in trative is a bodies matter of policy and law repeated bites at the apple. On procedure, not a change in substantive law. the contrary, the law whenever possible Administrative burdens do not override reaches repose.”).

the Judicial Power dispositive judgment. Here, the question of obviousness had judicial

Conservation of and administra been finally decided, and Powerscreen is tive resources also against counsels reliti precluded from reopening the same issue gation of issues that have been fully adju in another forum. Whether viewed as res finally dicated and decided. Although the judicata or preclusion, reexamination administrative agency boards have a “qua on this issue is not available. si-judicial” flavor, “the same principles of efficiency justify application which The Reexamination Statute doctrine of collateral estoppel judicial statute, in its various proceedings also justify application its in evolving forms, did not and does pur quasi-judicial proceedings.” Graybill v. port to authorize departure from prin Serv., U.S. Postal 1571 ciples judicial review finali (Fed.Cir.1986) (holding Maryland ty. The statute authorizes the return of court preclusive decision had effect on an issued patent to the administrative Systems

Merit Protection proceed Board agency so examiners can ings). conduct a more thorough examination than public in finality interest particu- is may have occurred the first time around. larly compelling in the context of commer- The purposes remain initially as conceived, cial investment and property rights. The provide to a less costly way of removing or adverse effect on the patent incentive, due restricting patents that should not have to uncertainty as to the validity duly of a granted been or that granted were too granted patent, notorious, is per- broadly, permit to such challenge even be meates hearing the record the recently fore litigation-inducing controversy has enacted America Invents arisen, Act. The reexam- and also to patentees enable to ination that is sustained, here after final bring overlooked references into the exam courts, contravenes the ination process. See Patent Reexamina policy of the reexamination procedures tion: Hearing on S. 1679 the Senate Before applied in this case. The panel ma- C omm. on the Judiciary, 96th Cong. jority apparently misperceives (1979) (statement this con- 15-16 of Comm’r Sidney cern, for question the is Diamond) (“Reexamination not whether all would elimi- adjudicated patent, an valid than amount of invalidate simplify significant a

nate or cases, the has patent PTO can the PTO validate a litigation. In some patent reexamina- adjudicated a result of Nor does the would conclude as been invalid. not have issued. patent grant a should to purport tion that reexamination statute A have issued. cer- patent A should not authority. such validity and litigation over tain amount completely would be infringement thus The merits 30,364 avoided.”); Cong. Rec. majority decides the merits of panel (“Reexamination (statement Bayh) of Sen. litiga- if there had been no appeal this as challengers holders and patent

would allow history, if the of obviousness as issue delays costs and present to the avoid fully adjudicated. been previously had not litigation.... Patent patent prior appeal to the As in the Federal our over- reduce the burden on will also Circuit, of the patent- the various elements drawing expertise the by courts worked ed refer- device were selected from various Office.”); Trademark of the Patent and ences, question and the is whether it would (1980) (statement 29,901 Cong. Rec. to been obvious combine these ele- have Hollenbeck) (“As pro- a of the Rep. result time, ments, way. and in This howev- this reexamination, con- potential vision for the er, my find that “one of ordi- colleagues by flict can be settled the Office art have able nary skill the would been itself in far time and at far smaller shorter to combine the available references such challenger the to the expense to practice alleged to way as invention.” only if the holder than would be the case This Maj. Op. is correct system.”). through recourse was court analytic criterion. re- The reexamination statute seeks to hindsight against Precedent warns com- expense reduce and encum- place or whereby disparate elements are bination litigation; brance of but when template into the of the new device fitted already litigated finally has been My guidance patentee. with the adjudicated, persons interested should be colleagues present a illustration of classical rely judicial able to on the decision. judicial to hindsight construct machine adjustments Throughout legislative known, a machine previously that was reexamination, suggested that no one reex- achieved commercial because success PTO amination could override previously unavailable advan- provided Such an unconstitu- decision. Fritch, See In re tages.2 contemplat- tional have act would not been (Fed.Cir.1992) (“[I]t impermissible Congress, improperly ed and is use the claimed invention as instruc- court. For the endorsed this ‘template’ piece together tion manual or issue, question here at of obviousness teachings art so that the litigated and decided in obvious.... court, claimed invention rendered followed decision on Circuit, previously court has stated that ‘[o]ne Federal and denial of certiorari. This pick no hindsight on can more cannot use reconstruction PTO reexamination performance compared prior improving 2. The invention in the '564 channels machines, way whereby capacity a of its material in a novel art because oversized debris, large process larger it can be made small relatively small can handle machine enough transported operating site to be predecessors, debris than its while concur- sifting sorting using a commercial value rently debris. This ma- on roads hitch. Its imitators, litigation. reducing jamming chine is described as attracted among isolated and choose disclosures of fundamental principles. respectfully I dissent. deprecate art to the claimed in ”). prohibited analysis This vention.’ adopted by panel majority,

nonetheless

although unaccompanied any “articula a underpinning” rational com in such

bining way the references as to patentee. made

achieve machine Inc.,

See KSR Int'l Co.v. Teleflex 398, 418, 127 S.Ct. 167 L.Ed.2d 705 BENEDICT, Appellant, Ward E. (“[Rejections obviousness grounds cannot sustained mere con BAKERY, INCORPORATED, SUPER statements; instead, clusory there must be Appellee. underpinning some articulated rational legal support conclusions of obvious No. 2011-1131.

ness.”). Cancellation No. 92047859. KSR recognized

The Court that “in- United States Court of Appeals, most, Federal if all Circuit. rely ventions instances uncovered, upon long building blocks since Dec. and claimed necessity discoveries almost of what, will be combinations of in some

sense, already known.” 550 U.S.

127 S.Ct. 1727. See Ruiz v. A.B. Chance

Co., (Fed.Cir.2004) F.3d

(“Inventions typically are new combina- features.”). existing principles

tions

We are offered no rationale for the combi- obvious,

nation now deemed other than the

patentee’s any achievement. On view of us, in which posture this case reaches panel majority errs its decision.

Conclusion plan, judi-

As matter constitutional structure, legislative

cial power, and na-

tional policy, innovation that has

been held valid or invalid in court is not

subject to administrative redetermination premises, issue. On these generally the PTO is not

available of patentability after litigated

has been to a final from

which no can has been taken. accepted here procedure violation

Case Details

Case Name: In Re Construction Equipment Co.

Court Name: Court of Appeals for the Federal Circuit

Date Published: Dec 8, 2011

Citation: 665 F.3d 1254

Docket Number: 2010-1507; Reexamination 90/008,447

Court Abbreviation: Fed. Cir.