Grüneberg and Myers - Intellectual Property Law


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The Patent is Obvious Proclaims Henny Penny

In Henny Penny Corp. v. Frymaster LLC, the Fed. Cir. affirmed the Board’s conclusion that Frymaster’s patent was not invalid as obvious.  The patent was directed to a system for measuring a degradation state of oil comprising a sensor for total polar materials (TPMs) located in fluid communication with, but external to a fryer pot.  The system was known, without an external sensor for TPMs, but a TPM sensor was disclosed in a secondary reference.  The Board did not abuse its discretion by disregarding HPC’s new argument based on deposition testimony of Frymaster’s expert.  A lack of motivation to combine the cited art was supported by substantial evidence, weighing the benefits, both lost and gained, against one another.  The Board’s determination that evidenced of secondary considerations in the form of two industry awards was commensurate in scope with the praised product and entitled to a presumption of nexus.  HPC’s argument that there was no nexus because the object of praise (a TPM sensor) was already known was rejected citing patentee’s showing that the claimed combination as a whole serves as a nexus.  The fox did not eat Henny Penny.

Richard Chinn