Tuesday, June 27, 2006

Obvious Patents

The Supreme Court agreed to consider a case that hinges on the "obviousness" standard of patent law. The "obviousness" standard holds that an innovation that would be obvious to someone skilled in the relevent art is not patentable. The specific case, Teleflex v. KSR, focuses on the alleged infringement of a gas-pedal patent that Teleflex holds for cars and light trucks. KSR had originally had the case dismissed due to obviousness, but the U.S. Court of Appeals for the Federal Circuit overturned that ruling.

The thought is that the Supreme Court will likely downgrade the standard for obviousness, and hopefully provide a new metric by which to judge obviousness. Microsoft and Cisco have filed a brief in support of KSR (that is, in support of lowering the obviousness standard). My experiences would suggest that the large pharmacutical companies would be on Teleflex's side in this case, as they often extend patent coverage on drugs by using what one might reasonably consider "obvious" patents.

Now, a patenting a technology that is truly obvious is certainly not in the public good, but that doesn't mean that moving towards making it easier to invalidate a patent on obviousness grounds is a good thing. The question is whether the current standard allows too much leeway for obviousness already. I think it does, and hopefully the SC will come down with a better metric for judging obviousness.

This still doesn't solve the real problem in patent litigation, which is that the Markman standard leaves it to the judge to decide exactly what a patent covers (claim construction). The problem is that claim construction will often times essentially decide a case, and appeals on claim construction are not allowed until after the case has finished. This means that months/years of litigation expenses can be wasted when a Markman appeal succeeds. Because the claim construction is so vital to the case, everthing that followed the Markman ruling is a complete waste of time, effort, and money if the judge improperly reads the patent. (Actually, it now occurs to me that: Judge::Markman as Official::World Cup Match)


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