Not everybody is cheering. For pharmaceutical companies, a single patent on a drug molecule can be the wellspring of billions of dollars in revenue. Drugmakers also like to tweak existing products to make longer-acting "new" ones and merge old drugs into combination pills, then patent these "inventions" as well. A ruling like KSR may make challenges to patents based on such enhancements easier to mount. Says Hans Sauer, intellectual-property counsel for the Biotechnology Industry Organization in Washington: "We're not totally thrilled."
IPBiz suspects the "chiral switch" (enantiomer) may be one area to come under scrutiny through the newly-approved "obvious to try" standard, arising with the demise of In re Deuel.
On KSR v. Teleflex, see also:
One other thought by IPBiz, what happens when the first guy didn't quite get the "invention" right? Is it "obvious to try" to correct it? Going to a purely academic theme, contemplate the text in
In the "compounds of xenon" case, the first person on the scene (Bartlett) got most of the credit; he did make a xenon gas compound, tho not quite what he thought it was. In the buckyball case, the first person on the scene (Exxon group, publishing in the Journal of Chemical Physics) got none of the credit, even though they did make C60, but did NOT recognize its structure. In the patent area, Edison gets most of the credit for the light bulb, even though he was NOT the first guy on the scene, and his fundamental patent does not disclose the use of filaments derived from bamboo, the key innovation that gave electric light bulbs a sufficiently long lifetime for commercialization. Go figure.