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Patents Bending

The Supreme Court takes a swipe at "obvious" patents.

The U.S. Supreme Court recently put the pedal to the metal in a case that many
patent experts say will accelerate a drive toward a more rigorous interpretation of
“obviousness.” In KSR International Co. v. Teleflex Inc., the Court ruled unanimously that a Teleflex patent that combined an adjustable gas pedal with a sensor-based throttle
control represented an obvious combination of two common design elements, and hence
KSR had not violated Teleflex’s patent when it introduced a similar pedal.

The decision was widely seen
as having implications far beyond the
automotive sector, and comes at a
time when both the courts and Congress
have taken a keen interest in
intellectual-property rights. The ruling
took issue with an objective, if narrow,
test of an invention’s “patentworthiness”
and instead found that
“ordinary innovation” may not be
patent-worthy.

Many patent experts praised
the decision, pointing to the large
jump in the number of patents granted
since the mid-1990s, when the
courts upheld “business methods” —
such as techniques to facilitate
E-commerce or other business
processes — as valid patents. David L.
De Bruin, a partner with Michael Best
& Friedrich, says, “There was a perception
that these patents were of
questionable validity.”

That question has now been
at least partially answered in the negative,
and attorneys say the result
may be a frenzy of challenges given
that obviousness is at the heart of
most patents. The high-court decision
coincided with the introduction of
the Patent Reform Act of 2007 in both
chambers of Congress and with
actions by the U.S. Patent and Trademark
Office, which wants to, among
other moves, require patent seekers
to provide more information as to why
a proposed patent deserves protection.
Last month the Patent Office
began a Web-based pilot project in
which it invites the public to offer peer
reviews of proposed patents, a potentially
efficient (and contentious) way
to enable a range of experts to weigh
in on patent-worthiness.

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