Tuesday, November 28, 2006

LINKS: Supreme Court Justices Discuss The Obvious Questions On Patent Obviousness

COMMENTS: This is a good step. I am excited to read their final opinion.

Supreme Court Justices Discuss The Obvious Questions On Patent Obviousness: "It's taken a while, but today was the day that the Supreme Court finally heard the KSR v. Teleflex case on patent obviousness that many have been hoping would reach the court for years. It's not always easy to tell how the justices really feel from what they say, but News.com has a pretty good summary of some of the quotes from the justices that suggests at least a few of them realize what's at stake. Multiple justices seemed to indicate that the current situation takes common sense out of the equation -- and that's a real problem. Chief justice Roberts noted that with the current situation: 'It's worse than meaningless because it complicates the question rather than focusing on the statute.' Justice Scalia noted that the current 'test' is 'gobbledygook' and 'meaningless.' Justice Breyer noted that it's impossible to set a hard definition for obviousness, and that the current situation doesn't allow for the flexibility that's needed to determine obviousness. This is a key point. Supporters of the current system claim that since obviousness is impossible to determine exactly, that there's simply no way to test for it. That's both false and misleading -- since large parts of our legal system involve 'tests' that cannot be proven exactly.

The arguments against adjusting the standard for obviousness seemed to be focused on two things: that obviousness is impossible to determine in hindsight and what a huge mess would be caused if the standard were suddenly changed. The first one is certainly an issue, but, again it's something that more flexibility should make bearable. Someone looking to show obviousness would need to show not prior art, but enough evidence suggesting that others skilled in the field were moving towards the same thing prior to the invention at hand. As for the second point, it may very well cause a mess as it opens up new ways to challenge many patents granted over the last couple of decades. However, that's hardly a reason not to fix the rule. If those patents were granted incorrectly, as many appear to have been, then it only serves the original, Constitutional, purpose of the patent system to correct the error, no matter what mess it creates initially."

(Via Techdirt.)


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