Friday, November 24, 2006

The split on KSR v. Teleflex

Forbes via AP discussed issues that will appear at next Tuesday's oral arguments on KSR v. Teleflex:

Critics of the Federal Circuit [motivation test for obviousness] argue that this has made it too difficult to prove that a claimed invention is obvious and therefore too easy to obtain a patent, because if a potential invention is obvious then technical experts may not have written anything about it.


But companies that support the Federal Circuit's test argue that it is effective in countering the problem of "hindsight bias."

John Duffy, a George Washington University professor who helped prepare KSR's Supreme Court filings, said that if the Supreme Court overturns the Federal Circuit's standard, it would make it easier for businesses to defend themselves against patent infringement suits by invalidating questionable patents. That could result in less patent litigation overall, he said.

Most legal experts expect the Supreme Court to modify the Federal Circuit's standard in some way. Goldstein said the court could even set a new standard for determining what's obvious.

IPBiz notes that if the Supreme Court is as "hands off" as it was in Merck v. Integra, then little may happen. On the other hand, in Festo, the Supreme Court formulated tests that were simply pulled out of thin air.


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