(CN) – A company that licenses memorabilia trading cards struck out in its patent infringement claim against The Upper Deck Co. Finding the patent invalid, the Federal Circuit cited several examples of similar memorabilia cards, including a Marilyn Monroe trading card with a diamond attached.
Sixteen years ago, Adrian Gluck patented his idea of attaching a baseball card to a cut-up piece of memorabilia, such as a sliver of the baseball bat once used by legendary hitter.
When Media Technologies Licensing, which licensed the patents, accused Upper Deck of patent infringement, Senior U.S. District Judge Alicemarie Stotler in Los Angeles found the patents invalid based on obviousness.
The federal appeals court affirmed and rattled off a list of earlier items that were similar to the memorabilia cards.
“The prior art here includes: (a) a trading card with a picture of Marilyn Monroe and a diamond attached to the card; (b) a piece of a sheet purportedly slept on by one of the Beatles attached to a copy of a letter on Whittier Hotel stationery declaring authenticity; (c) a piece of fabric purportedly belonging to a Capuchin Friar named Stephen Eckert attached to paper stock including a picture of the friar; and (d) a greeting card fashioned to look like a novelty item that ostensibly includes a piece of jeans material belonging to James Dean,” the ruling states.
Upper Deck simply had to show that someone might think to attach a sports-related item to the cards, instead of a diamond or piece of fabric, the court said.
“Media Tech’s assertion that a person of ordinary skill would not have combined the references — or applied them to a sports card — must fail,” Judge Haldane Robert Mayer wrote.
Media Tech argued, unsuccessfully, that the patents were valid, because the cards filled a “long felt but unsolved need,” were met by initial skepticism, enjoyed commercial success and gained industry recognition.
The three-judge panel in Washington, D.C., affirmed dismissal of the lawsuit on a 2-1 vote.
In dissent, Judge Randall Rader said the majority’s opinion suggests a “bias against non-technical arts.”
“No doubt, the inventor of the transistor or of the polio vaccine came from more scientific fields and contributed more to the welfare of humanity,” Rader wrote. “This court, however, cannot overlook that many individuals invest vast energies, efforts, and earnings to advance these non-technical fields of human endeavor.”
Rader said the majority “relies on wholly irrelevant prior art” and “substitutes its judgment on patentability for that of a jury.”
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