We first wrote about this case over a year ago
, but it's still a bit surprising to hear that the Supreme Court has actually agreed to hear the KSR v. Teleflex case that questions what's the standard for "obviousness" in awarding patents
. The patent act makes it clear that patents are only supposed to be awarded on ideas that are non-obvious to those who are considered skilled in the field. As has been discussed
, in recent years the patent office and the courts have focused only on prior art as the standard for obviousness. However, just because something hasn't been patented, written about in a journal, or even done before it doesn't mean it's not obvious to those skilled in the art. In fact, as someone pointed out in our comments, the law clearly separates the issue of "new" from "obvious"
suggesting that they intended for two separate tests on patents. However, many patent lawyers (and patent hoarders) love the lower standard, since it allows them to get a lot more patents for obvious things, as long as no one can find any prior art. They like to claim it's impossible to come up with a test for "obviousness" even though the courts have no problems coming up with similar tests for other ambiguous terms ("reasonable person," "reasonable doubt" etc.). This whole thing becomes even more problematic as the ability to patent a wider sphere of things has come about. It used to be thought that you couldn't (or shouldn't) patent business models or software -- so there's even less "prior art" in those areas on incredibly obvious things. Having a real test for obviousness would preclude an awful lot of the patents that we see companies being held hostage over
In this particular case, one firm took two different off the shelf components and used them together. It didn't even use them in ways different than what they were supposed to do -- it just used them together (similar to NTP's patents that simply combined "wireless" with "email"). For that, they got a patent. KSR claims that such a move should be considered obvious, and that the Patent Act has a standard that is not being applied to patents. This is a huge case in the patent world -- and could have tremendous implications on the patent system if the Supreme Court does, in fact, decide that the Patent Office and lower courts have been incorrectly applying the test of obviousness.