"Last week, ruling in a dispute over the design of a gas pedal, the Supreme Court jolted the American patent system. The case, KSR International Co. v. Teleflex Inc., dealt with the placement of an electronic sensor in an accelerator that could be adjusted according to a driver's height -- not in itself a matter of national concern. But the court used its decision to issue a broad rebuke of the way in which American patent cases are decided. In the process, some patent lawyers say, it may also have added a new level of uncertainty to an area of the law that is vital to the nation's economy and our ability to protect and encourage innovation.
In a unanimous opinion, the justices ruled that the patent in question was invalid because designing a gas pedal in such a way was an "obvious" thing to do, at least to the average gas pedal designer, and therefore not really an invention. What's more, Justice Anthony Kennedy, writing for the court, argued that the current patent regime threatened to stifle the sort of creativity that the Founding Fathers had originally created the system to foster. Courts, Kennedy wrote, have been upholding patents for technologies or designs that didn't need them, that would have been developed "in the ordinary course" of events. In doing so, they have allowed bogus inventions to steal business from legitimate ones, and discouraged true innovation.
[...]
Odd as it may seem, the question of what deserves a patent and what does not turns on how courts define that one term: "obvious." The discussion might sound comical if so much didn't rest on its outcome -- without a clear definition of what's obvious, at least to someone with a little expertise in a particular field, there can be no objective definition of what constitutes an invention, and without that the patent regime would make no sense. As lawyers often put it, obviousness is "the final gatekeeper of the patent system."
[...]
But obviousness, over the years, has proven a somewhat fickle gatekeeper, and courts have had a difficult time nailing it down. "The courts have been going back and forth and trying to define obviousness for 150 years," says Mark Lemley, a patent law professor at Stanford Law School, "and it's still largely a 'you know it when you see it' kind of thing."
. . .
The Supreme Court's first major attempt to define obviousness was in 1850, in a case called Hotchkiss v. Greenwood. The invention in question was a doorknob. The court denied the claim by three men that their innovation of making doorknobs out of porcelain or potters clay rather than metal was a patentable invention. The difference, the court wrote, was merely formal, and "destitute of ingenuity or invention." An "ordinary mechanic acquainted with the business," the court ruled, would have been able to come up with something similar. It was, in other words, obvious.
[...]
On occasion the Supreme Court has cast a wide net for signs of an invention's predecessors. A 1976 decision footnoted Greek mythology, ruling that a water flush system for cleaning dairy barns was obvious in part because Hercules, in his Fifth Labor, had constructed something similar to clean the filthy Augean Stables.
A supplementary type of test looks to the market. If an invention proves especially successful commercially, the court ruled in 1976, that suggests the invention must not have been obvious, or market pressures would have driven someone to come up with it earlier... ( more !!!)
In a unanimous opinion, the justices ruled that the patent in question was invalid because designing a gas pedal in such a way was an "obvious" thing to do, at least to the average gas pedal designer, and therefore not really an invention. What's more, Justice Anthony Kennedy, writing for the court, argued that the current patent regime threatened to stifle the sort of creativity that the Founding Fathers had originally created the system to foster. Courts, Kennedy wrote, have been upholding patents for technologies or designs that didn't need them, that would have been developed "in the ordinary course" of events. In doing so, they have allowed bogus inventions to steal business from legitimate ones, and discouraged true innovation.
[...]
Odd as it may seem, the question of what deserves a patent and what does not turns on how courts define that one term: "obvious." The discussion might sound comical if so much didn't rest on its outcome -- without a clear definition of what's obvious, at least to someone with a little expertise in a particular field, there can be no objective definition of what constitutes an invention, and without that the patent regime would make no sense. As lawyers often put it, obviousness is "the final gatekeeper of the patent system."
[...]
But obviousness, over the years, has proven a somewhat fickle gatekeeper, and courts have had a difficult time nailing it down. "The courts have been going back and forth and trying to define obviousness for 150 years," says Mark Lemley, a patent law professor at Stanford Law School, "and it's still largely a 'you know it when you see it' kind of thing."
. . .
The Supreme Court's first major attempt to define obviousness was in 1850, in a case called Hotchkiss v. Greenwood. The invention in question was a doorknob. The court denied the claim by three men that their innovation of making doorknobs out of porcelain or potters clay rather than metal was a patentable invention. The difference, the court wrote, was merely formal, and "destitute of ingenuity or invention." An "ordinary mechanic acquainted with the business," the court ruled, would have been able to come up with something similar. It was, in other words, obvious.
[...]
On occasion the Supreme Court has cast a wide net for signs of an invention's predecessors. A 1976 decision footnoted Greek mythology, ruling that a water flush system for cleaning dairy barns was obvious in part because Hercules, in his Fifth Labor, had constructed something similar to clean the filthy Augean Stables.
A supplementary type of test looks to the market. If an invention proves especially successful commercially, the court ruled in 1976, that suggests the invention must not have been obvious, or market pressures would have driven someone to come up with it earlier... ( more !!!)
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