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I am reading up on this case:

https://usinventor.org/mollymetz-thejumpropequeen/

How is the patent determined to be "obvious" by the PTAB?

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From one article

“But the board disagreed, saying in its decision on Jump Rope Systems' U.S. Patent No. 7,789,809 that it was persuaded by the testimony of Rogue Fitness' expert that a skilled artisan would have recognized that combining a 1978 German patent application with a 1979 French patent application would ameliorate that problem.”

And

“In the PTAB cases, Jump Rope Systems tried to persuade the board that the inventions were nonobvious by citing a statistic that 79% of all event winners in national and international jump-rope competitions between 2013 and 2016 used ropes incorporating the claimed technology.

But the board said the evidence Jump Rope Systems put forth was insufficient because it wasn't clear if the jump-ropes the athletes used in the competitions were Jump Rope Systems models or were made by rivals it has accused of copying its products.

"More importantly, there is no evidence indicating whether any of hose jump-ropes 'using [Jump Rope Systems] technology' are coextensive with, or even covered by, any claim of the ... patent," one of the decisions said.”

This is from

https://bannerwitcoff.com/wp-content/uploads/2021/04/Jump-Rope-Maker-Gets-PTAB-To-Nix-Rivals-Handle-Patents-Law360.pdf

The argument that it was unclear if the ropes used in competition were made by the company or by copiers doesn’t make sense because extensive copying can be used as evidence of non-obviousness.

In another article the inventor expressed her unhappiness that this was not decided in a full-out court case.

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  • Why does it matter that 79%, ie. a high percentage, of jump rope winners used the patented jump rope to the argument that it is non-obvious? Aug 16, 2022 at 17:03
  • There are so-called secondary evidence of non-obviousness “objective indicia (e.g., commercial success, long felt but unresolved needs, failure of others, and unexpected results) serve the important purpose of “guard[ing] against slipping into use of hindsight” when making a determination of obviousness.“ The 79% figure could be showing commercial success. Also being copied by others can show that the invention is something. However it is important to show that the success is tied to the claimed features. Success due to marketing doesn’t have the “nexus” to the claims that are required.
    – George White
    Aug 16, 2022 at 19:27

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