Case IPR2015-01377
`U.S. Patent No. 7,435,982
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP., AND
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioners
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`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner
`_____________
`
`Case IPR2015-01377
`U.S. Patent No. 7,435,982
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`_____________
`
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`DECLARATION OF PHILIP H. BUCKSBAUM, PH.D.
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION ............................................................................................... 1
`I.
`II. SUMMARY OF OPINIONS .............................................................................. 3
`III. QUALIFICATIONS ......................................................................................... 3
`IV. MATERIALS REVIEWED ...........................................................................12
`V. LEGAL STANDARDS .....................................................................................13
`A. Anticipation .................................................................................................14
`B. Obviousness .................................................................................................16
`C.
`Prior Art .......................................................................................................22
`VI. PERSON OF ORDINARY SKILL IN THE ART .........................................23
`A. Active Workers In The Field And The Inventor .........................................23
`B.
`Problems In The Art, Prior Art Solutions, Rapidity with Which Innovations
`are Made, and Sophistication of the Technology .................................................24
`Petitioners Provide No Factual Support for their Definition and Do Not
`C.
`Rely On Any of the Relevant Factors...................................................................24
`VII. CLAIM CONSTRUCTION ...........................................................................25
`A. Light Source ................................................................................................26
`B. High Brightness Light .................................................................................29
`C.
`Sustained......................................................................................................32
`VIII. BACKGROUND TECHNOLOGY OVERVIEW ......................................35
`A. Plasma Light Background ...........................................................................35
`1.
`Plasma Basics ...........................................................................................35
`2.
`Spectral Brightness, Spectral Intensity, Brightness, Intensity, Power of a
`Plasma, Emissivity, and Radiation Temperature ..............................................36
`INVENTION OVERVIEW ............................................................................40
`IX.
`X. SUMMARY OF PETITIONERS’ ARGUMENT ............................................41
`XI. FACTUAL ASSESSMENT OF INSTITUTED GROUNDS ........................42
`A. Overview of Gärtner ....................................................................................43
`B. Gärtner does not anticipate the challenged claims reciting a “high
`brightness light” because it does not enable the claims .......................................44
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`1. Gärtner does not provide one skilled in the art with sufficient direction or
`guidance to obtain the claimed “high brightness light” without undue
`experimentation .................................................................................................44
`2. Gärtner’s lack of guidance regarding working examples weighs heavily
`against a finding that it enables the claimed “high brightness light” ...............47
`3.
`The state of the prior art (arc lamps) further supports a lack of
`enablement ........................................................................................................48
`C. The Gärtner does not render obvious the claims challenged in the
`consolidated IPR2015-01300 proceeding ............................................................49
`D. The combination of Gärtner and Beterov does not render obvious the
`claims challenged in the IPR2015-01377 proceeding ..........................................49
`E. The combination of Gärtner and Ershov does not render obvious the claims
`challenged in the IPR2015-01279 proceeding .....................................................50
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`U.S. Patent No. 7,435,982
`I, Philip H. Bucksbaum, Ph.D., hereby declare as follows:
`
`I.
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`INTRODUCTION
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`1. My name is Philip H. Bucksbaum.
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`2.
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`I understand that in response to a Petition submitted by ASML
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`Netherlands B.V., Excelitas Technologies Corp., and Qioptiq Photonics GmbH &
`
`Co. KG (collectively, “Petitioners”), the Patent Trial and Appeal Board (“Board”)
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`instituted an inter partes review in consolidated IPR2015-01300 and IPR2015-
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`01303 (“IPR ’1300”) as to claims 1, 3, 4, 10, 16, 21, 24, 25, 26, 27, 30, 31, 34, 37,
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`42, 43, 49, 55, 61, 62, 63, 64, 67, 68, 71, 72, 74, and 78, and IPR2015-01377
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`(“IPR ’1377”) as to claims 23 and 60, of U.S. Patent No. 7,435,982 (the “’982
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`Patent”). I understand that the ’982 Patent is titled “Laser-Driven Light Source”
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`by Donald K. Smith and that the ’982 Patent is currently assigned to Energetiq
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`Technology, Inc. of Woburn, MA (“Energetiq”).
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`3.
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`I also understand that in response to a Petition submitted by ASML
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`Netherlands B.V., Excelitas Technologies Corp., and Qioptiq Photonics GmbH &
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`Co. KG (collectively, “Petitioners”), the Patent Trial and Appeal Board (“Board”)
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`instituted an inter partes review, IPR2015-01279 (“IPR ’1279”) as to claims 19,
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`39, 40, and 41 of U.S. Patent No. 7,786,455 (the “’455 Patent”). I understand that
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`the ’455 Patent is titled “Laser-Driven Light Source” by Donald K. Smith and that
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`the ’455 Patent is currently assigned to Energetiq Technology, Inc. of Woburn,
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`MA (“Energetiq”).
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`4.
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`I have been retained on behalf of Energetiq as an independent expert
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`in this inter partes review proceeding to provide expert opinions on the technology
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`at issue. Specifically, I have been asked to provide my expert opinion relating to
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`the patentability of claims 1, 3, 4, 10, 16, 21, 23, 24, 25, 26, 27, 30, 31, 34, 37, 42,
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`43, 49, 55, 60, 61, 62, 63, 64, 67, 68, 71, 72, and 78 of the ’982 Patent and the
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`patentability of claims 19, 39, 40, and 41 of the ’455 Patent relative to the
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`instituted grounds. Unless specifically stated, my opinions herein apply to the
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`claimed technology in both the ’982 Patent and the ’455 Patent.
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`5.
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`I understand that Petitioners have submitted expert Declarations by
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`Dr. J. Gary Eden (“Declaration”) in support of their Petitions to assert that the
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`claims at issue are invalid.
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`6.
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`I confirm to the best of my knowledge the exhibits cited in this
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`declaration are true and accurate copies of what they purport to be, and that an
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`artisan in the field would reasonably rely on them to formulate opinions such as
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`those set forth in this declaration.
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`7.
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`For my time consulting on this matter, I am being compensated at my
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`customary consulting rate. I am also being reimbursed for reasonable expenses
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`incurred for my work on this matter. My compensation does not depend on the
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`conclusions I reach in this declaration nor does it depend on the outcome of this
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`proceeding.
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`II.
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`SUMMARY OF OPINIONS
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`8.
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`Regarding validity of the patents-at-issue, it is my opinion that the
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`challenged claims reciting “high brightness light” are valid and that alleged prior
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`art reference Gärtner neither enables nor anticipates the “high brightness light”
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`limitation of the challenged claims of the ’982 Patent or the ’455 Patent.
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`9. Moreover, because Petitioners rely on Gärtner, as opposed to Beterov
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`(IPR2015-01377 proceeding) or Ershov (IPR2015-01279 proceeding) for
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`disclosing a “high brightness light,” it is my opinion that Gärtner does not render
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`obvious any of the challenged claims reciting that limitation in the ’982 or ’455
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`Patents.
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`III. QUALIFICATIONS
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`10. My
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`educational background, professional
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`experience,
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`and
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`qualifications as an expert in the fields of physics of laser interactions with atoms,
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`molecules, light sources, and plasmas are detailed in my latest curriculum vitae
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`(“CV”) and list of publications, a true and correct copy is attached as Exhibit
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`2074.
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`11. For over 35 years I have worked professionally as a researcher and
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`educator in the fields of atomic and molecular physics, ultrafast laser-matter
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`interactions, and vacuum ultraviolet and x-ray science.
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`12.
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`I am the Marguerite Blake Wilbur Professor in Natural Science at
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`Stanford University, with appointments in the departments of Physics, Applied
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`Physics, and Photon Science. I am also the Director of the Stanford Photon
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`Ultrafast Laser Science and Engineering (PULSE) Institute at Stanford University
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`and the SLAC National Accelerator Laboratory. I have been a Professor on the
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`faculty of Stanford since 2006. My current Stanford faculty duties include
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`chairing the Graduate Admissions Committee in Applied Physics, which selects
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`which students from around the world are admitted to Masters and Ph.D. degree
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`programs at Stanford.
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`13.
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`I hold several advisory roles in addition to my normal research,
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`teaching, and management positions at Stanford. Among these, I currently chair a
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`National Academy of Sciences study commissioned by the United States
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`Department of Energy, the Army, and the Navy, to advise the government on high
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`intensity lasers. I am also a member of the National Science Foundation Advisory
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`Committee for their Mathematics and Physical Sciences Directorate. I am also a
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`member of the National Photonics Initiative Steering Committee, which advises
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`the United States Congress and the executive branch on emerging opportunities in
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`optics and photonics technologies.
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`I have been working in the Physics field for over 35 years. During
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`14.
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`my career, I have held the following positions: Peter Frankin University Professor
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`of Physics, University of Michigan, 2005-2006; Otto Laporte Collegiate Professor
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`of Physics, University of Michigan, 1998-2006; Professor of Physics, University
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`of Michigan, 1990-1998; Adjunct Associate Professor of Applied Physics,
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`Columbia University, 1989-1990; Member of Technical Staff, Bell Laboratories,
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`Murray Hill, NJ, 1982-1990; Post-doctoral Member of Technical Staff, Bell
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`Laboratories, Holmdel, NJ, 1981-1982; Post-doctoral Fellow, Lawrence Berkeley
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`National Laboratory, Berkeley, CA, 1980-1981.
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`15.
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`I hold the following academic degrees: A.B. magna cum laude in
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`Physics from Harvard College, Cambridge, MA, 1975; M.A. in Physics from the
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`University of California at Berkeley, 1978; and Ph.D. in Physics from the
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`University of California at Berkeley, 1980.
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`16. As a result of my career, I have been fortunate to be the recipient of
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`many accolades from both my peers and my employers. I have received the
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`following professional honors and awards for my research and teaching activities:
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`Fellow of the National Academy of Sciences, since 2004; Fellow of the American
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`Academy of Arts and Sciences, since 2012; Fellow of the American Physical
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`Society, since 1990; Fellow of the Optical Society of America, since 1995, and
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`President of the Optical Society in 2014; John Simon Guggenheim Memorial
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`Foundation Fellow, 1996-1997; Miller Visiting Research Fellow, University of
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`California at Berkeley, 1996; University of Michigan Sokol Award for
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`Contributions to Graduate Education and Research, 2001; Distinguished Traveling
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`Lecturer, Division of Laser Science, American Physical Society, 1996-1999;
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`American Physical Society Centennial Speaker, 1998-1999; Distinguished Faculty
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`Research Award, University of Michigan, 1996; Rosenberg Lecturer in Physics,
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`Yale University, 1995; NATO Post-doctoral Fellowship, 1981; National Science
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`Foundation Graduate Fellowship, 1975-1978; Elected to Phi Beta Kappa, 1975.
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`17.
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`I have conducted or otherwise managed research in a wide variety of
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`technical areas throughout my career. Some of my most relevant research has
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`been on the physics of ultrafast laser-matter interactions and use of infrared laser
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`energy to generate vacuum ultraviolet light sources known as high harmonics
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`(HHG), and I have worked in a number of areas related to laser-driven ionization,
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`laser-induced ponderomotive forces and other laser and plasma light sources
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`during my career. My graduate work started in 1975 at the University of California
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`at Berkeley, in a laser spectroscopy laboratory. My graduate research required
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`designing, building, and using flashlamp-pumped tunable lasers, so I have had a
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`familiarity with plasma light technology since the beginning of my career. I built
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`several different kinds of lasers in pursuit of my doctoral research, including
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`internally and externally frequency doubled pulsed and continuous (cw) lasers and
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`infrared optical parametric oscillators. My doctoral dissertation in 1980 concerned
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`the measurement of the strength of the neutral weak interaction in laser-induced
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`atomic transitions.
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`18. My postdoctoral research area at Lawrence Berkeley National
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`Laboratory involved experimental tests of electroweak interactions in atoms, and I
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`co-authored a textbook on this emerging area of physics in 1981. Thereafter I took
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`a position at Bell Laboratories, where I broadened my technical pursuits in my
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`research and participated in building one of the first high-powered ultrafast
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`ultraviolet laser amplifier systems involving amplification in excimers in a plasma
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`discharge. I used this new light source to study nonlinear vacuum ultraviolet
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`(VUV) light source generation in atomic gases. My group, for a time, held the
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`record for the shortest wavelength coherent radiation ever produced. I then used
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`this source to develop two new fields of physics research. The first was ultrafast
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`laser-melting of semiconductors, where I measured the thermodynamic properties
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`of the liquid-to-amorphous silicon transition. The second area was ultrafast time
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`resolved vacuum ultraviolet photoemission spectroscopy, where my colleagues
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`and I measured the electronic band structure of transiently excited semiconductors.
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`19. By 1985, I had become a permanent member of the research staff at
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`Bell Labs. I began investigations in a new area of high field laser-atom physics. I
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`helped to establish the field of high field laser-atom physics and discovered a
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`number of new phenomena and published several written materials on the
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`discovery. My most important discoveries in this field concerned the role of
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`ponderomotive forces in strong laser-atom phenomena such as ionization. I also
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`became interested in the production of terahertz radiation, and was among the first
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`to recognize the unique properties of ultra-broadband “half-cycle” pulses of
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`radiation that could be produced in the terahertz spectral region.
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`20. After my time at Bell Labs, I went to the University of Michigan in
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`1990 as a Full Professor in Physics, and continued my study of intense laser-
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`ionized gases. For example, my students and I explored new properties of
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`coherent vacuum ultraviolet radiation generated by focusing intense lasers into a
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`dense (0.1-1 atmosphere) gas. I also began two new areas of research: coherent
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`electron wave packets in atoms, and ultrafast quantum coherent control. These
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`fields have flourished. In 2001, I became the director of a new National Science
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`Foundation center at Michigan (FOCUS) devoted to research in ultrafast coherent
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`control and related science. Quantum control is now considered one of the grand
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`challenge problems in atomic physics and physical chemistry. I have recently
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`extended ultrafast techniques to still shorter wavelengths in order to investigate
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`ultrafast quantum processes more deeply.
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`21.
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`In 2006, I moved to Stanford University to establish and direct the
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`Stanford PULSE Institute, a research center that utilizes intense laser light sources,
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`including the world’s first x-ray free-electron laser, the Linac Coherent Light
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`Source (LCLS), located at Stanford’s SLAC National Accelerator laboratory.
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`22.
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`I have specific extensive experience in a number of areas that I
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`believe to be relevant to the technology involved in this proceeding and to the
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`issues that I have been asked to consider and comment upon as an expert in the
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`field. These specific experience areas include the following:
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`(i) My present research activity is primarily focused on a research
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`center at Stanford University devoted to research using ultrafast laser-matter
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`interactions.
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`(ii)
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`I have extensive experience with many types of different lasers,
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`including those discussed by the Petitioners and Petitioners’ expert, Dr. Eden. I
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`have designed, built, and/or used a number of laser-based or plasma-based light
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`sources and systems, including: flashlamp-pumped dye lasers; continuous-wave
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`(cw) tunable dye lasers; arc-lamp pumped cw Nd:YLF lasers; actively mode-
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`locked and Q-switched flashlamp-pumped Nd:YAG and Nd:YLF lasers and
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`amplifiers; mode-locked cw lasers; synchronously mode-locked and cavity-
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`dumped dye lasers and dye amplifiers; KrF excimer lasers and KrF excimer
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`amplifiers; metal vapor electronic Raman lasers; laser systems for generating
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`broadband terahertz half-cycle pulses; cw Ti:Sapphire oscillators; Kerr-lens mode-
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`locked Ti:Sapphire oscillators; Ti:Sapphire chirped-pulse amplifiers; dispersion-
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`compensated fiber transport systems for ultrafast pulses; optical parametric
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`amplifiers; non-collinear optical parametric amplifiers; and high harmonics
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`generators. I have been familiar with the science and technology of laser-plasma
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`interactions for over 35 years. From 1975 to 1980, I designed, built, and used a
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`succession of plasma flashlamp pumped tunable dye lasers, including work on the
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`flashlamp plasma light sources and their coupling to the dye gain medium. In the
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`1980’s, I worked at Bell Laboratories to design and build an extreme ultraviolet
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`(XUV or EUV) light source based on amplification of laser radiation in an excimer
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`plasma discharge, and then nonlinear excitation of a rare gas with the amplified
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`ultraviolet light to make vacuum ultraviolet radiation. My colleagues and I later
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`used this VUV lightsource to illuminate semiconductor wafers of silicon, gallium
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`arsenide, and other semiconductors of potential interest to the micro-electronics
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`community, to probe their properties. I pioneered, later in the 1980’s, the study of
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`laser-matter ponderomotive forces in the strong-field low density regime. This
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`involved direct measurements on the electrons in the plasma formed by the focused
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`laser, and later I also studied light emission from these plasmas in the vacuum
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`ultraviolet. Recently I have further broadened my technical research to investigate
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`different ways to produce VUV lightsources of unprecedented brightness and short
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`pulse duration using nonlinear interactions in a dense gas irradiated by intense
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`laser pulses.
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` I am the Director of the Stanford PULSE Institute at Stanford
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`(iii)
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`University. The PULSE Institute is a jointly managed faculty research center at
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`Stanford University and SLAC, devoted to expanding the science applications and
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`opportunities of ultrafast short wavelength and high intensity light sources.
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`PULSE research areas include atomic physics, physical chemistry, materials
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`science, bioscience, and plasma physics.
`
`(iv)
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`I was the founding Editor of the Virtual Journal of Ultrafast
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`Science for the American Institute of Physics.
`
`(v)
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`I have authored or co-authored: more than 400 scientific
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`articles, including approximately 200 in peer-reviewed journals; four books; and
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`six book chapters or sections. I have given over 370 lectures as a speaker at
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`scientific conferences and meetings, and as an invited lecturer. A complete list of
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`publications I have authored and invited lectures I have given is included in my
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`curriculum vitae. (See Curriculum Vitae of Philip H. Bucksbaum (Ex. 2074).)
`
`(vi)
`
`I have taught courses in Physics and Applied Physics over the
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`past twenty-five years, including courses in atomic physics, quantum control,
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`lasers, x-rays, nonlinear optics, and quantum optics. I have supervised the doctoral
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`research of 34 graduate students who performed original research in these areas of
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`physics, at Columbia University, the University of Michigan, and Stanford
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`University.
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`23. With a broad background in lasers and plasma physics and light
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`sources, I believe that I am expert in this field and I am qualified to provide an
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`accurate assessment of the technical issues in this proceeding.
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`
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`IV. MATERIALS REVIEWED
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`24.
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`In preparation of this declaration and in reaching my opinions
`
`presented in this report, I reviewed and considered the items identified in
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`Appendix A attached to this report. My research for this report included
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`reviewing the ’982 Patent and its file history, Petitions in the IPR2015-01300,
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`’1303, and ’1377 proceedings submitted by Petitioners challenging claims in the
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`’982 Patent, the Declarations submitted by Dr. Eden in support of the Petitions
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`challenging claims in the ’982 Patent, the consolidated Institution Decision for
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`IPR2015-01300, -1303 and Institution Decision for IPR2015-01377 for the ’982
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`Patent issued by the Board, the alleged prior art references cited therein, and third
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`party publications. I have reviewed the ’455 Patent and its file history, the Petition
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`submitted by Petitioners challenging claims in the ’455 Patent, the Declaration
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`submitted by Dr. Eden in support of the Petition challenging claims in the ’455
`
`Patent, the Institution Decision for the ’455 Patent issued by the Board, and the
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`alleged prior art references cited therein. I also attended the deposition of Dr.
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`Eden held on the 27th and 28th of January 2016. I may make reference to this
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`deposition by citing to excerpts of a transcript of the deposition. I am also aware
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`of the facts set out in the declaration of Dr. Don Smith, which I understand is
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`being submitted at the same time as my declaration, (“Smith Declaration”) (Ex.
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`2016) and the Exhibits cited and relied on therein. My opinions herein are also
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`based on my education, training, research, knowledge, and my professional
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`experience and expertise.
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`25. While I have reviewed, analyzed and discussed herein, the documents
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`identified in the Petitions, Declarations, and/or otherwise produced by Petitioners,
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`this analysis should not be construed as an admission that any of these documents
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`are applicable as prior art against any of the Energetiq patents discussed in this
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`report. Whenever I opine below that a reference does not disclose a claim
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`element, my opinion is that the reference fails to disclose the claim element both
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`expressly and inherently.
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`
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`V.
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`LEGAL STANDARDS
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`26.
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`I am not an attorney. Energetiq’s counsel has informed me about the
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`legal standards of patent validity. I understand that in this proceeding before the
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`Board, Petitioners, as the patent challenger, bear the burden of proving the
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`elements of patent invalidity by a preponderance of the evidence. I further
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`understand that the scope of issues that are to be considered in this inter partes
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`review are limited to the grounds disclosed in the Petition on which the Board has
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`instituted review.
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`A. Anticipation
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`27. Energetiq’s counsel has informed me that a claim is invalid if it is
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`anticipated. I understand that invalidity by anticipation requires that every
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`element of the claimed invention, either expressly or inherently, be described in a
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`single prior art document such that a person of ordinary skill in the art could
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`practice the invention without undue experimentation. I understand that the way
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`in which the elements are arranged or combined in the claim must also be
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`disclosed, either expressly or inherently, in an anticipatory reference. I also
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`understand that the requirement that the prior art elements themselves be arranged
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`as in the claim means that claims cannot be treated as mere catalogs of separate
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`parts, in disregard of the part-to-part relationships set forth in the claims and that
`
`give the claims their meaning.
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`28.
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`I understand that if the prior art reference does not expressly set forth
`
`a particular element of the claim, that reference still may anticipate if that element
`
`is “inherent” in its disclosure. I understand that the concept of inherent disclosure
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`does not alter the requirement that all elements must be disclosed in an
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`anticipatory reference in the same way as they are arranged or combined in the
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`claim. Also, I understand that an element is inherent in a disclosure if one of
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`ordinary skill in the art, at the time of the filing of the patent at issue, would have
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`found that the disclosure makes clear that the missing descriptive matter is
`
`necessarily present in the thing described in the disclosure. I also understand that
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`inherency, however, may not be established by probabilities or possibilities. The
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`mere fact that a certain thing may result from a given set of circumstances is not
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`sufficient.
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`29.
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`I understand that to anticipate a means plus function claim element, a
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`prior art reference must disclose an identical or equivalent structure that performs
`
`the same function, as the function and corresponding structure of the means plus
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`function element. I understand that in the context of a means-plus-function claim,
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`the supposed invalidating prior art must disclose not simply a means for achieving
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`the desired function, but rather the particular structure recited in the written
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`description corresponding to that function, or an equivalent thereof. I also
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`understand that Petitioners must provide a structural analysis by identifying the
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`corresponding structure or an equivalent structure was present in the prior art. I
`
`understand that a structural analysis is required when means-plus-function
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`limitations are at issue; a functional analysis alone will not suffice.
`
`30.
`
`I have been informed by Energetiq’s counsel that in addition to
`
`disclosing every element of the challenged claim, a prior art reference must enable
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`one of ordinary skill in the art to make the anticipating subject matter without
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`undue experimentation. I understand that undue experimentation is a conclusion
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`reached by weighing factual considerations, commonly referred to as the Wands
`
`factors, which include the quantity of experimentation necessary, the amount of
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`direction or guidance presented, the presence or absence of working examples, the
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`nature of the invention, the state of the prior art, the relative skill of those in the
`
`art, the predictability or unpredictability of the art, and the breadth of the claims,
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`but that these considerations are illustrative, as opposed to mandatory.
`
`B. Obviousness
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`31.
`
`I have been informed that a claimed invention is invalid if it is
`
`obvious. I understand that a patent is obvious if the differences between the
`
`claimed subject matter and the prior art are such that the subject matter as a whole
`
`would have been obvious at the time the invention was made to a person having
`
`ordinary skill in the art.
`
`32. Energetiq’s counsel has informed me that obviousness is a question of
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`law based on underlying questions of fact. I understand that the underlying factual
`
`inquiries in an obviousness analysis include: (1) determining the scope and content
`
`of the prior art; (2) resolving the level of ordinary skill in the prior art; (3)
`
`ascertaining the differences between the claimed invention and the prior art; and
`
`(4) considering objective evidence of nonobviousness.
`
`33.
`
` With regard to determining the scope and content of the prior art, I
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`have been informed by Energetiq’s counsel that a reference qualifies as prior art
`
`for an obviousness determination when the prior art reference is analogous to the
`
`claimed invention. I understand that there are two tests that define the scope of
`
`analogous prior art: (1) whether the art is from the same field of endeavor,
`
`regardless of the problem addressed, or (2) if the reference is not within the field
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`of the inventor's endeavor, whether the reference is reasonably pertinent to the
`
`particular problem with which the inventor is involved.
`
`34.
`
`I have been informed by Energetiq’s counsel that objective evidence
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`of nonobviousness can be considered in determining whether a patent claim is
`
`obvious. I understand that such evidence may often be the most probative and
`
`cogent evidence in the record, because such evidence may show that an invention
`
`appearing to have been obvious in hindsight, was not obvious at the time. I
`
`understand that such evidence can include:
`
`•
`
`Long-Felt Need: Evidence that a claimed invention solved
`
`longstanding problems or fulfilled a long-felt need in an
`
`industry can be considered as an indication of nonobviousness.
`
`•
`
`Industry Skepticism and Failure of Others: Evidence that
`
`individuals in the industry were skeptical about how the
`
`invention would work, or thought that it might have operational
`
`problems,
`
`can be
`
`considered
`
`as
`
`an
`
`indication of
`
`
`
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`nonobviousness.
`
`•
`
`•
`
`•
`
`•
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`Commercial Success: Evidence of commercial success can be
`
`considered as an indication of nonobviousness.
`
`Industry Praise and Unexpected Results: Evidence that industry
`
`members have praised the invention can be considered as an
`
`indication of nonobviousness.
`
`Copying: Evidence of copying of patent features by others can
`
`be considered as an indication of nonobviousness.
`
`Licensing: Evidence of acquiescence by a substantial portion of
`
`competitors in a market to the validity of a patent, generally
`
`through acceptance of a license, can be considered as an
`
`indication of nonobviousness.
`
`•
`
`Investment
`
`in Research and Development: Evidence of
`
`investment in research and development can be considered as
`
`an indication of nonobviousness.
`
`35.
`
`I understand that in order for objective evidence to be accorded
`
`substantial weight in the determination of obviousness or nonobviousness, it must
`
`be relevant