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ZUP, LLC v. Nash Manufacturing, Inc.

Patent Held Obvious In View of Close Prior Art and Unpersuasive Objective Indicia

ZUP, LLC v. Nash Manufacturing, Inc., __ F.3d __, 2018 WL ___ (Fed. Cir. July 25, 2018) (PROST, Newman (dissenting), Lourie) (E.D. Va.: Hudson) (2 of 5 stars)

Fed Cir affirms summary judgment of invalidity for obviousness. ZUP’s patent related to a “water recreational board” with both side-by-side handles and side-by-side foot bindings. The record supported the district court’s determination that a person of skill would have been motivated to combine available prior art in such a way as to permit riders to readily switch between riding positions, which was part of ZUP’s claims, and identifies references to position changing in the record. The opinion also rejects ZUP’s contention that the district court shifted the burden of persuasion when reviewing secondary considerations of nonobviousness. The district court’s findings that ZUP had failed to establish a long-felt but unresolved need were referring to ZUP’s failure to carry its burden of production in responding to the obviousness evidence presented by Nash. The opinion also concludes that ZUP’s secondary considerations evidence was insufficient to survive summary judgment, noting that ZUP was not the first to offer a water board with changeable positions, and finding ZUP’s evidence of copying “even less compelling.” Op. at 15.

Dissent: Judge Newman would have found ZUP’s wakeboard non-obvious. Though noting the closeness of the prior art, her opinion emphasizes secondary considerations, such as copying and long-felt need.

KEYWORDS: INVALIDITY (YES); OBVIOUSNESS (YES); SECONDARY CONSIDERATIONS; COPYING; LONG-FELT NEED