A Little Common Sense is a Dangerous Thing: The Inherent Inconsistency Between KSR and Current Official Notice Policy

[Excerpt] “The question of whether an invention is an obvious variation of existing technology is one that has troubled courts for decades. From its roots in nineteenth century case law to the recent Supreme Court decision KSR v. Teleflex, Inc., the doctrine of obviousness has waxed and waned—moving through a variety of judicially-created tests to a current state that is still far from perspicuous. This paper will examine obviousness through a particular lens: the U.S. Patent and Trademark Office (“USPTO,” “PTO”) tool known as “official notice”—the practice of declaring a patent application’s claims unpatentable as obvious based on undocumented reasoning, such as the common sense or common knowledge of a person having ordinary skill in the art to which the application pertains. After KSR, using unsubstantiated common sense-based rationales for rejecting patent claims is considered a completely valid practice. However, a line of obviousness cases, including one from the United States Supreme Court, stands for the polar opposite position—that declaring a patent invalid as obvious without underlying prior art support does not comport with the standards of the Administrative Procedure Act. Unfortunately, this contradiction leaves patent practitioners and the federal district courts to reconcile diametrically opposed holdings, especially when a case involves official notice. Part II of this paper will give a brief history of general obviousness jurisprudence up to the Supreme Court’s KSR decision in 2007. Next, Part III will introduce the reader to the obviousness inquiry through the eyes of a USPTO examiner by presenting a hypothetical patent application scenario and defining various terms of art. Part IV will introduce the concept of formal official notice at the USPTO, including an examination of the official agency guidelines for the practice, and will present a judicial history of official notice. Part V will return to KSR, presenting more recent Federal Circuit obviousness cases and introducing the problems that the current jurisprudence brings about. Finally, Part VI will conclude with potential solutions to the issue, arguing that the judiciary should hold the USPTO to task in providing evidence that an invention is in fact obvious.

Compression of an elastic roller between two rigid plates

A closed solution - exact within two-dimensional linear elastostatics - is deduced for the problem appropriate to the compression of an elastic circular cylinder between two smooth, flat and parallel, rigid plates. The boundary displacements obtained for the cylinder involve elliptic integrals, whereas its stress field is given in terms of elementary functions exclusively. The results found for the distribution of the contact pressure and for the width of the contact zone are compared with the corresponding predictions of Hertz's approximate theory, for which elementary corrections are determined by asymptotic means. Analogous corrections are established for a previously available approximate estimate of the diametral compression undergone by the roller, which remains indeterminate in the Hertz treatment of this two-dimensional contact problem

Heavy atom quantum diffraction by scattering from surfaces

Typically one expects that when a heavy particle collides with a surface, the scattered angular distribution will follow classical mechanics. The heavy mass assures that the de Broglie wavelength of the incident particle in the direction of the propagation of the particle (the parallel direction) will be much shorter than the characteristic lattice length of the surface, thus leading to a classical description. Recent work on molecular interferometry has shown that by increasing the perpendicular coherence length, one may observe interference of very heavy species passing through a grating. Here we show, using quantum mechanical simulations, that the same effect will lead to quantum diffraction of heavy particles colliding with a surface. We find that the effect is robust with respect to the incident energy, the angle of incidence and the mass of the particle. It may also be used to verify the quantum nature of the surface and its fluctuations at very low temperatures.Comment: 9 pages, 3 figure

Angular size and emission time scales of relativistic fireballs

The detection of delayed X-ray, optical and radio emission, ``afterglow,'' associated with gamma-ray bursts (GRBs) is consistent with models, where the bursts are produced by relativistic expanding blast waves, driven by expanding fireballs at cosmological distances. In particular, the time scales over which radiation is observed at different wave bands agree with model predictions. It had recently been claimed that the commonly used relation between observation time t and blast wave radius r, t=r/2\gamma^{2}c where \gamma(r) is the fluid Lorentz factor, should be replaced with t=r/16\gamma^{2}c due to blast wave deceleration. Applying the suggested deceleration modification would make it difficult to reconcile observed time scales with model predictions. It would also imply an apparent source size which is too large to allow attributing observed radio variability to diffractive scintillation. We present a detailed analysis of the implications of the relativistic hydrodynamics of expanding blast waves to the observed afterglow. We find that modifications due to shock deceleration are small, therefore allowing for both the observed afterglow time scales and for diffractive scintillation. We show that at time t the fireball appears on the sky as a narrow ring of radius h=r/\gamma and width 0.1h, where r and t are related by t=r/2\gamma^{2}c.Comment: Submitted to ApJL (11 pages, LaTeX

Learning by doing in market reform: Lessons from a regional bond fund

Local currency bond markets in East Asia and the Pacific have grown impressively since the 1997 Asian crisis, but policy authorities in the region realize they still have some work to do to allow the markets to realise their true potential. Hence, there have been a variety of regional initiatives to develop these markets. One of these initiatives is the Asian Bond Fund II, which was established by 11 central banks in East Asia and the Pacific in 2005. In creating a regional index bond fund and eight single-market funds, the central banks worked together to identify and come up with ways to reduce market impediments in eight local currency bond markets. Moreover, they built into the regional fund's structure an incentive mechanism for reducing impediments further. --

Rain driven by receding ice sheets as a cause of past climate change

The Younger Dryas cold period, which interrupted the transition from the last ice age to modern conditions in Greenland, is one of the most dramatic incidents of abrupt climate change reconstructed from paleoclimate proxy records. Changes in the Atlantic Ocean overturning circulation in response to freshwater fluxes from melting ice are frequently invoked to explain this and other past climate changes. Here we propose an alternative mechanism in which the receding glacial ice sheets cause the atmospheric circulation to enter a regime with greater net precipitation in the North Atlantic region. This leads to a significant reduction in ocean overturning circulation, causing an increase in sea ice extent and hence colder temperatures. Positive feedbacks associated with sea ice amplify the cooling. We support the proposed mechanism with the results of a state-of-the-art global climate model. Our results suggest that the atmospheric precipitation response to receding glacial ice sheets could have contributed to the Younger Dryas cooling, as well as to other past climate changes involving the ocean overturning circulation

Stability of the Forward/Reverse Shock System Formed by the Impact of a Relativistic Fireball on an Ambient Medium

We analyze the stability of a relativistic double (forward/reverse) shock system which forms when the fireball of a Gamma-Ray Burst (GRB) impacts on the surrounding medium. We find this shock system to be stable to linear global perturbations for either a uniform or a wind (r^{-2}) density profile of the ambient medium. For the wind case, we calculate analytically the frequencies of the normal modes which could modulate the early short-term variability of GRB afterglows. We find that perturbations in the double shock system could induce oscillatory fluctuations in the observed flux on short (down to seconds) time scales during the early phase of an afterglow.Comment: ApJ, submitted, 26 pages, 5 figure

Leverage, Investment, and Firm Growth

We show that there is a negative relation between leverage and future growth at the firm level and, for diversified firms, at the segment level. Further, this negative relation between leverage and growth holds for firms with low Tobin's q, but not for high-q firms or firms in high-q industries. Therefore, leverage does not reduce growth for firms known to have good investment opportunities, but is negatively related to growth for firms whose growth opportunities are either not recognized by the capital markets or are not sufficiently valuable to overcome the effects of their debt overhang.