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Life of a Law Student, University of Houston Law Center

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Supreme Court Rethinks Obviousness

By: Luke Gilman | Other Posts by
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The Patently-O Patent Law Blog has a great analysis on the concept of obviousness that will be central in a patent case SCOTUS just agreed to hear – KSR v. Teleflex (Supreme Court 2006)

The doctrine of nonobviousness ensures that patent rights are not granted on inventions that are simply throw-away modifications of prior technology. Questions of obviousness are at play in virtually every patent case, in both proceedings before the USPTO and during infringement litigation.

Over the past twenty-five years, the Court of Appeals for the Federal Circuit has developed its nonobviousness doctrine using a motivation/suggestion/teaching test. According to the test, when various pieces of prior art each contain elements of an invention, the prior art can be combined together to invalidate a patent on the invention only when there is some motivation, suggestion, or teaching to combine the prior art.

KSR has asked the Supreme Court to rethink that approach and take a fresh look at the obviousness standard for patentability. The petition questions whether obviousness should require any proof of some suggestion or motivation to combine prior art references.

The EFF has taken a somewhat vigilante approach to attacking prior art in their patent busting campaign. I’ll be interested to see the approach the court takes, since my puny 1L understanding of the patent system is that it’s currently very susceptible to manipulation and exploitation. It’s also increasingly necessary as technology becomes cheaper and more easier to appropriate. Some safeguards are an economic necessity, but a lot hinges on getting it right. We’re entering an age when the ownership of patents is not an aid to doing business, it IS the business. I’m not saying there’s anything wrong with that, but the stakes are definitely higher.

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Category: intellectual property law, patent law, technology law

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