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That’s Obvious!

A patent case pending before the United States Supreme Court could return (some) sanity back to the patent system.

Perhaps the single most important patent case still pending before the United States Supreme Court is the case of KSR International v Teleflex. It’s one in a string of cases where the Supreme Court is being asked to return patent law and its interpretation to the rules in place prior to the establishment of the Circuit Court of Appeals for the Federal Circuit and its reign of activist reinterpretation in the 1980s and ’90s. KSR addresses the issue of obviousness in determining whether subject matter is patentable.

The long-standing rule on obviousness is set forth in the Patent Act. Specifically, the Patent Act questions if the proposed invention was obvious to a person having ordinary skill in the art at the time the invention was made. Verbatim, the language is:

A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.

The proper application of this rule is particularly critical where the alleged inventor has done nothing more than combine two, previously existing inventions that, in the purported new invention,…

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