29 November 2006
In an earlier blog (“Undesirable Software Patents and the US case KSR vs. Teleflex”) we reported on the case KSR vs. Teleflex. This is not just a patent case, it has wider implications, also for Europe. If the plaintiff gets its way obtaining a patent in the US will be harder. The treshold for patentability (also - and most likely foremost - for software patents). Also at stake is what seems like a more critical approach by the US Supreme Court towards the highest patent court in the US, the Court of Appeal for the Federal Circuit in Washington, DC (“CAFC”). The CAFC seems to want to bring greater predictability to patent law issues, but this predictability comes at the expense of compromising complex issues. The Supreme Court flatly rejects the CAFC’s attempts at “bright line” rules.
The obviousness test, currently debated in this case, is of crucial importance for future patent grants. The test is used to prove that a person of ordinary skill in the art would combine earlier findings in the same manner claimed in the patent. A change in use of the test would constitute one of the biggest changes to IP law in a generation. If the obviousness test as applied by the CAFC is dropped, the challenges to existing patents and pending patent applications will have a significant impact on the practice of patent law, including an increase in challenges to licensing agreements and settlements.
Yesterday, parties held their oral argument before the court. The transcripts of the hearing can be found here.