The issues are intertwined: On the one hand, we have an ongoing uncertainty and a certain laxity in the way in which judicial decision making is rendered regarding the prior art being obvious or otherwise...Classic Graham criteria are applied but where and how do prima facie vs. secondary objective criteria analysis and how to fit these in the analytic approach? I see this as an analytical issue for judgement by SCOTUS (very appropriate to the entire field of patent law that since Graham vs Deere, has strayed into partisan camps at the CAFC level, largely due to SCOTUS inaction in providing guidance since Graham vs Deere was enshrined into 35 U.S.C. § 103.,circa 1952. Fast forward 69 years, and we are still in limbo and long overdue an update.
Rule 60 addresses a different question and that addresses clear legal error. An uncorrected clear error by all legal and scientific standards. I believe that Judge Du was genuinely taken in by a superficially plausible prior art analysis by Heinecke that was unrebutted (reasons for which we can speculate ad nauseam). The problem arises that when prima facie obviousness (Mori Hayashi and Kurabayashi) is negated by fallacious science AND the backstop of secondary indicia is removed by further erroneous analysis (Kurabayashi)then it really doesn't matter if you place primary objective criteria before secondary objective indicia or vice-versa or take both together, you end up with the same result-obviousness.
Therefore, if you take Judge Du's decisions as flowing from the scientific analysis she accepted, they are entirely logical. I know this isn't the party line, but it must be stated in fairness. It was after all the duty of the Plaintiff attorneys and expert witnesses to point this out!
HK
