November 28, 2006
They "converted patents from handguns to bazookas, and at the same time stopped requiring permits to get them"
Posted by Gordon Smith

The "they" in that title is the United States Court of Appeals for the Federal Circuit. Adam Jaffe is an economist who criticizes the Federal Circuit for its role in "breaking" the patent system.

The Supreme Court heard oral arguments in KSR International v. Teleflex today, which will allow the Court to re-examine the current standard for evaluating the "obviousness" of an invention. Section 103 prevents a patent from being issued "if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains."

According to the Federal Circuit, the "evidentiary component" of obviousness is a "showing of a suggestion, teaching, or motivation to combine the prior art." Brown & Williamson Tobacco Corp. v. Philip Morris, Inc., 229 F.3d 1120, 1124-25 (Fed. Cir. 2000). During the oral arguments today, Justice Scalia said of that standard, "This is gobbledygook!"

The W$J has some background on the case, but if you want the legal briefs, go to Findlaw.

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Comments (1)

1. Posted by Darian Ibrahim on November 28, 2006 @ 14:56 | Permalink

My favorite part of that WSJ story was the quote by Paul Michel, the Federal Circuit's chief judge, who remarked (apparently in response to the criticism by Jaffe and possibly Mark Lemley as well) that "I'm not in the business of responding to what a few professors say." Ouch.

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