Obviously perturbed
Oral argument in KSR v. Teleflex occurred yesterday. The Supremes are obviously perturbed about the current state of patent law. Patents are to be granted only on inventions that aren’t obvious, and a key question in this case is what test should be used to determine whether an invention meets this standard. In a world where patents sometimes are issued for things like an orange trash bag with a Jack O’ Lantern face and a basic swing set “designed” by a kid in elementary school, it’s no surprise that the Supremes and lots of other folks are a bit agitated. The U.S. Court of Appeals for the Federal Circuit, which hears all appeals of patent cases, developed a “teaching-suggestion-motivation” test that it uses to asssess the obviousness of an invention. If you read the transcript of yesterday’s hearing (linked below), you’ll quickly get the sense that the Supremes aren’t big fans of this test. “Three imponderable nouns” and “gobbledygook” is how Justice Scalia describes it. Chief Justice Roberts called the test ”worse than meaningless,” and Justice Breyer read the briefs in the case 15 times and still couldn’t understand it. He’s not alone. Let’s hope the Supremes produce clarity in this muddled area.
KSR v. Teleflex oral argument transcript
(Many thanks to my colleague Jim Laughlin, who provided members of H&K’s IP group with some very insightful commentary via email hours after the hearing.)
November 29th 2006, 2:04pm