• Jul 1 2022
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  • Category: CAFC Updates

LG filed two petitions for inter partes review, each challenging a dependent claim of the U.S. Patent No. 6,844,990 relating to capturing and displaying digital panoramic images. LG’s obviousness arguments relied exclusively on its expert’s calculations and plots using a prescription in the prior art (“Tada”) to show that Tada meets a certain compression and expansion zone limitation of the challenged claims.  ImmerVision’s expert noticed that the aspheric coefficients from Table 3, which corresponds to Tada’s Embodiment 2, were exactly the same as in Table 5, which corresponds to Tada’s Embodiment 3, and argued that Tada includes a readily apparent error – essentially there was a copy-and-paste error in Tada. In its final written decisions, the Board found that the disclosure of aspheric coefficients in Table 5 of Tada is an obvious error that a person of ordinary skill in the art would have recognized and corrected, and that because the correct aspheric coefficients do not satisfy the language of the challenged claims, LG had not met its burden to prove the challenged claims unpatentable as obvious. LG appeals.  The CAFC finds that substantial evidence supports the Board’s fact finding that the error would have been apparent to a person of ordinary skill in the art such that the person would have disregarded the disclosure or corrected the error. The CAFC rejects LG’s argument that the law sets forth an “Immediately Disregard or Correct” standard that imposes a temporal urgency on the discovery of the error before the error can be considered “obvious” to a skilled artisan, noting that the amount of time it takes a skilled artisan to detect an error may be relevant to whether an error is, in fact, an apparent error, but this is just one factor for the fact finder to consider as part of the overall analysis.  The CAFC also rejects LG’s argument that the law is limited to instances in which the error is a typographical error (i.e., a spelling mistake), finding that the distinction between a typographical error and a copy-and-paste error is a distinction without a difference. Accordingly, the CAFC affirms.  Judge Newman dissents in part because the existence of the error was not discovered until an expert witness conducted a dozen hours of experimentation and calculation, and it should not be necessary to search for a foreign document in a foreign language to determine whether there is an inconsistency in a United States patent. 

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