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   Sarah (Fackrell) Burstein (design_law@mastodon.social)'s status on Monday, 04-Sep-2023 04:27:11 JST Sarah (Fackrell) Burstein

   I can't even believe what I'm reading. WTAF, y'all.

   • Embed this notice
     Paul Cantrell (inthehands@hachyderm.io)'s status on Monday, 04-Sep-2023 04:27:09 JST Paul Cantrell

     in reply to

     @design_law As a non-patent-person (and non-lawyer) follower, this is intriguing! May I check my very dim understanding here by attempting to restate?

     Is what you’re saying that, legally speaking, “anticipation” vs infringement is (purely? mostly?) a function of order in time, whereas “obviousness” is a test that does not (entirely? at all?) depend on what’s already been done before? Am I in the ballpark here?

   • Embed this notice
     Sarah (Fackrell) Burstein (design_law@mastodon.social)'s status on Monday, 04-Sep-2023 04:27:10 JST Sarah (Fackrell) Burstein

     in reply to

     No, this is not some kind of inappropriate incongruity.

     This is the difference between anticipation and obviousness.

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     Sarah (Fackrell) Burstein (design_law@mastodon.social)'s status on Monday, 04-Sep-2023 04:27:10 JST Sarah (Fackrell) Burstein

     in reply to

     For the non patent people here: Yes, there is symmetry between infringement and anticipation. Not between infringement and obviousness. That's not a thing.

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     Paul Cantrell (inthehands@hachyderm.io)'s status on Monday, 04-Sep-2023 04:42:45 JST Paul Cantrell

     in reply to

     @design_law
     That is helpful, thank you!

     It does make intuitive sense that some things could be radically unlike any existing patent but still be “obvious,” whereas some tiny but consequential change could be non-obvious — and working out that line of thought, yes, I see that there kind of has to be a time asymmetry there. Brain hurting, but I think I understand! Law is fascinating.

     I am confused about the parenthetical “(scope)” after “infringement” in your answer. Could you clarify that?

   • Embed this notice
     Sarah (Fackrell) Burstein (design_law@mastodon.social)'s status on Monday, 04-Sep-2023 04:42:46 JST Sarah (Fackrell) Burstein

     in reply to

     • Paul Cantrell

     @inthehands Good question.

     At a high level:
     Novelty = new
     Nonobvious = new enough

     The maxim they are citing here says that there should be symmetry between infringement (scope) and anticipation (novelty). In other words, if something looks similar enough to infringe, it's also similar enough to anticipate.

     Obviousness is different. The whole idea of obviousness is that there are some prior designs that aren't close enough to anticipate but should still invalidate.

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     Sarah (Fackrell) Burstein (design_law@mastodon.social)'s status on Monday, 04-Sep-2023 05:30:44 JST Sarah (Fackrell) Burstein

     in reply to

     • Paul Cantrell

     @inthehands I was referring to, basically: "What can you stop people from doing?" I.e., what is the "scope" of your patent?

   • Embed this notice
     Paul Cantrell (inthehands@hachyderm.io)'s status on Monday, 04-Sep-2023 05:30:44 JST Paul Cantrell

     in reply to

     @design_law
     That makes perfect sense. Thanks for helping a curious dilettante!