The ‘obvious intentions’ of the Supreme Court

The Supreme Court is faced with a case on obvious intentions. Patent law states that obvious intentions are not patentable and the courts have been left to define the issue of what is obvious. Currently in the United States, companies are obtaining patents despite the obvious intentions attached which are making it more difficult to be creative.

The test used by the Circuit Appeal Court states that a patent can only be contested on grounds of obviousness, where a party must illustrate that a ‘teaching, suggestion or motivation’ could direct the skilled person in the field to produce the patented invention. This test however, has come under heavy criticism being described as ‘Federal Circuit jargon’ and ‘meaningless’ by some of the judges in the Supreme Court. The test “…is contrary to the Patent Act, irreconcilable with this Court’s precedents and is bad policy” said Deputy Solicitor General Thomas Hungar.Â

The case concerns Teleflex and KSR. Telefex invented an accelerator pedal, which joins two technologies that already exist. KSR created a pedal with the same features for a competing company. Telefex brought an action against KSR and sued for patent infringement. KSR argued that placing the two technologies together was obvious and the court agreed. However, on appeal this
was overturned and is now in the Supreme Court.Â

The case is being observed carefully. The judges comments seem to point suggest that they are siding with the arguements, that too many patents are being granted despite an obvious intention existing. Many of the biggest companies, such as Microsoft, are arguing that the current approach is too lenient and makes applying for a patent too simple. Microsoft is one of the companies filing a friend-of-the-court brief, to support this case. However, companies such as Johnson & Johnson claim that if a change were to be introduced, many patents would be weakened causing mass litigation.

The case continues…

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