Posts Tagged: "KSR International"

Have We Hit Bottom in the Patent Market?

The patent market had an amazing bull run from the late 1980’s through 2012. The peak was 2011 to 2012 when we saw a number of multi-billion dollar patent sales and patent-driven acquisitions. The patent market started slowing down substantially shortly thereafter. Many blame the America Invents Act (AIA), which introduced a variety of ways to inexpensively challenge the validity of patents in administrative proceedings at the patent office. All of a sudden the confidence that once a patent was issued it was valid was shaken. However, the AIA was only part of the problem.

Obviousness When All Elements Not Present in Prior Art?

The Tokai and Ritchie rationale seems to have never been cited by any other panels of the Court. While this may be due to many reasons, the fact that this reasoning could so easily invalidate virtually any claim in any patent, combined with the fact that it has only scarcely been utilized by the Court, suggests that this is an extraordinarily important issue for the Court as a whole to consider.

Petition for Rehearing en banc filed in Plasmart v. Kappos

This case intrigued me from the start because it seemed rather odd that there should be a nonprecedential opinion in an appeal to the Federal Circuit necessitated by a completely adjudicated inter partes reexamination at the United States Patent and Trademark Office. Moreover, the original panel concluded that the combination of known elements resulted in a predictable result. The problem with that reasoning, however, is that not all of the elements were found within the prior art. In fact, the Board found that there are no fewer than three (3) meaningful structural differences between the invention as claimed and the prior art.

5th Anniversary KSR: Is Section 103 Unconstitutional?

This is a good time to review the implications of this case, but an even better time to look into the origins and constitutionality of the Non-obviousness requirement. You might object that the jurisprudence of the non-obviousness requirement is so well established that nothing can be learned from this sort of analysis. I disagree. Patent law is under assault by the Supreme Court, the media, the ‘information wants to be free’ crowd, multinational corporations, and the economics profession. If we attempt to explain patent law based on the decisions of people who never passed the patent bar, never wrote a patent, never prosecuted a patent, and do not have a technical background, we are doomed. We need to define patent law as a natural law/right based on certain fundamental truths. This is the only way to get the non-patent attorney judge or the general public to understand patent law and understand that it represents justice.

KSR the 5th Anniversary: One Supremely Obvious Mess

On Monday, April 30, 2007, the United States Supreme Court issued its final decision in the matter of KSR v. Teleflex, which overruled the Federal Circuit’s application of the so-called “teaching, suggestion, motivation” test (or simply TSM) as it applies to determining whether an invention is obvious. At least for the last generation (and likely longer) no other Supreme Court case in the patent arena has been nearly as influential as the Court’s decision in KSR v. Teleflex. This is because obviousness is where the rubber meets the road for the patentability of inventions. This 5th Anniversary of the ruling provides an opportunity to revisit the decision and where we have come since. This will be a recurring theme this week on IPWatchdog.com as we look at the law of obviousness in the wake of this infamous decision.