Wednesday, November 29, 2006

KSR v. Teleflex- looks like the good guys might win this one

The Supreme Court heard argument yesterday in the most important patent case years, and probably the most important case so far this term. I have blogged about it before.

At issue is when an invention is obvious, particularly in the context of the combination of preexisting technologies. The Court of Appeals for the Federal Circuit, the special appellate court with exclusive jurisdiction over patent cases, has established its own test to determine obviousness, called the teaching-suggestion-motivation test. In (really, really, really) short, it means that unless the patent examiner can point to an existing teaching, suggestion, or motivation on the subject- basically, some kind of article- then it can't be obvious.

Well, the Justices universally expressed disapproval of this test. Justice Scalia called it gobbledygook- the Chief Justice joked that experts testifying to an invention's non-obviousness must "the least insightful person you can find." Even the Patent Office argued it should be thrown out.

And it should be- the Federal Circuit's test lowers the bar to an almost ludicrous level, and essentially places the burden on the examiner to show obviousness. It should really fall on the applicant to demonstrate non-obviousness; they're asking for a legal monopoly, they should clear some hurdles.

In my (non-patent lawyer) opinion, the entire law needs a rewrite. Innovation happens too fast now to justify a 17 year monopoly on anything. Patents need to be shorter and harder to obtain- and patents on algorithms should be done away with altogether. An algorithm is simply a mathematical process- no one invents them, they are discovered.

And there is a difference between the two.