Simultaneous Inventions - Obviousness?

In my previous post, I briefly delved into the concept of second considerations and how they could shed light into the determination of a patent’s obviousness. Among the list of second considerations, the simultaneous invention is a factor that is rarely applied by the Federal Circuit in comparison to others. The Federal Circuit has stated that the fact that another person has simultaneously and independently created the same invention could indicate that the invention was obvious. From an accused infringer’s standpoint, this often-overlooked secondary consideration could work in one’s favor. This factor could be particularly effective in a situation “where the simultaneous inventions occurred shortly after an enabling technology was introduced.”

Take for example, the following sequence of events:

• June 1, 1912, Company A introduces the world’s first radio with an antenna for receiving reception
• August 1, 1912, Inventor B develops a radio antenna that improves the reception of Company A’s radio
• September 1, 1912, Inventor C, independently of Inventor B, develops an antenna that improves the reception of Company A’s radio. Inventor B’s patent reads on the antenna of Inventor C.

With the simultaneous invention factor, Inventor C, if sued by Inventor B for patent infringement, could argue that the fact that Inventor B and Inventor C each independently created a radio antenna shortly after the enabling of a technology, the radio in this case, shows that the invention is obvious. In other words, the antenna would have been invented sooner if the radio was created sooner. From a litigation strategy standpoint, the accused infringer under a similar circumstance would do whatever he or she could to find technology that preceded the invention and argue that the invention only occurred once the technology existed, and therefore the invention is obvious.

Source: http://www.ipo.org/wp-content/uploads/2013/03/SecondaryConsiderations.pdf