Discussion: Garner’s patent.
Discussion: Garner’s patent.
Mr. Higgins did not infringe on Ms. Garner’s patent. In order for a process to be patentable, it must be a novel invention. According to testimony by both Mr. Higgins and Ms. Garner, this process is one that is used by many retailers. Our text says, “[t]he novelty requirement contemplates that the invention be new and truly different from what has gone before in the relevant field of inventive activity” (Langvardt et al., 2019, p. 290). The fact that Ms. Garner uses this only for shoes does not make her idea or the actual process different from the others. Mr. Higgins’s store had been using the same process for years before going online with it.
Ms. Garner obtained a patent from the government for her process; however, I would have to insist that be looked at again or re-examined. The process of keeping customer records and allowing one-click, online shoe shopping is a process that any shoe salesperson should have reasonably considered. Anyone can request re-examination of a patent by submitting a written request to the USPTO. If the re-examination were to show that the claimed patented invention can be found in prior reference, the patent can be invalidated (DeRuyter, 2019).
I do not believe that Ms. Garner’s patent meets the requirements of being novel or non-obvious. This process is not a new one in the retail industry. As Mr. Higgins stated, his company had been doing this for several years before they ever went online with their sales. Ms. Garner even agreed that this is process is used by many retailers online and in a brick-and-mortar setting. Also, basic customer service entails the keeping of records, especially customer information. It is obvious that it will be profitable to have a system that personalizes a shopping experience for each customer. As for having utility, the process is definitely useful. It is so useful, in fact, that almost every retailer across the country uses something identical or very similar in its business.
If I were the judge in this case, I would have to rule in favor of the defendant, Mr. Higgins. There was no infringement on Ms. Garner’s patent. I would also suggest the re-examination of Ms. Garner’s patent altogether. In proving that others had been using the same process for many years before the patent was issued to Ms. Garner, there could be cause for the patent to be revoked.
DeRuyter, C. (2019). What Happens When You Get A Patent Revocation? Legal Zoom. https://www.legalzoom.com/articles/what-happens-when-you-get-a-patent-revocation#:~:text=In%20the%20U.S.%2C%20any%20person,that%20your%20rights%20are%20surrendered. (Links to an external site.)
Langvardt, A. W., Barnes, A. J., Prenkert, J. D., McCrory, M. A., & Perry, J. E. (2019). Business law: The ethical, global, and e-commerce environment (17th ed.). Retrieved from https://www.vitalsource.com
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