Patents for "obvious" inventions

There's an interesting patent case, KSR International v. Teleflex, bubbling up through the US courts.  It's been reviewed by the Court of Appeals and KSR has petitioned (90 page PDF) the Supreme Court for a writ of certiorari, i.e. for the Supreme Court to consider the case.  The question at hand is one of obviousness.

I'm interested because I see a fair number of patents where the invention seems obvious to me.  Patents are only supposed to be granted for ideas which are not obvious "to one of ordinary skill in the art" so I could easily become quite conceited.  Indeed, when I discuss the obviousness test with potential inventors at NMS, I routinely tell them that they are not "ordinary" so, just because an idea seems obvious to them, doesn't mean it is not patentable.  I wish this wasn't the case, but that's the way the system works.

Last October, the Supreme Court invited the Office of the Solicitor General to file a brief in the case.  That's encouraging as it suggests they may grant certiorari.

For those who are interested, Tech Law Journal has links to the case's history and to various amicus briefs from Cisco, Microsoft and other interested parties.  Today, Patently O reports the Solicitor General has filed an Amicus brief (25 page PDF) recommending the Supreme Court grant certiorari.  Patently O also provides a bit more background on obviousness tests in the US and the European Patent processes.

Time will tell... At least it now appears likely, this case will be heard by the US Supreme Court.

Comments

[RR]

OBVIOUSNESS BEGINS WITH THE PATENT EXAMINER. HIS WORK LOAD IS SUCH THAT HE MUST DISPOSE OF THE APPLICATION.REJECYING THE CLAIMS AS OBVIOUS OVER THE PRIOR ART WITH A FINAL REJECTION WHICH WILL PROBABLY NOT BE AFFIRMED ON APPEAL LEADS THE EXAMINER TO ALLOW THE CASE AND SO DISPOSE OF IT WITHIN THE TIME HE WAS PERMITTED FOR EXAMINING THE APPLICATION. SO, IF THE COURTS WANT FEWER OBVIOUS PATENTS CLUTTERING UP THE SYSTEM, IT IS UP TO THE COURT AND PATENT APPEAL SYSTEM TO AFFIRM THE PATENT EXAMINER ON HIS OBVIOUS REJECTIONS!