Patents: Defining the "obvious"
written by Beth E. Arnold
In the most anticipated patent case of the year, KSR v. Teleflex, the Supreme Court unanimously overturned the Federal Circuit and changed the analysis used to determine the "obviousness" of certain inventions. Finding the existing "teaching, motivation, suggestion" test to be too rigid, the Court advocates a more "common sense" approach. The result? A less structured analysis (uncertainty) and tougher battle (more time and cost) to obtain and maintain patents on certain inventions. The Court specifically found that a "novel" combination of prior art elements that uses known methods is nonetheless unpatentable for being "obvious," if it does no more than yield predictable results. Observers consider this ruling a victory for anti-patent groups like the Business Software Alliance and are concerned that this less rigid obviousness test will incorrectly be applied to deny or invalidate patents in unpredictable areas such as drug development. There is also concern that the uncoordinated efforts of the Court, Congress and the Patent Office will result in a patent system that does not properly incentivize and/or reward innovation. Stay tuned. There is sure to be more...