Wednesday, May 02, 2007

KSR v Teleflex etc

Looks like everyone is on about the recent Supreme Court Decision of KSR v Teleflex. so I though I should put in my 2 cents worth too. The decision referred to Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U. S. 57 (1969) and Sakraida v. AG Pro, Inc., 425 U. S. 273
(1976), stating:

If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. Sakraida and Anderson’s-Black Rock are illustrative—a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions.

When I was writing the request for reexamination of the “one-click” patent I thought things might go the way they did in KSR v Teleflex so I did make some arguments using these cases in the request. On the other hand, given the way things have turned out, perhaps the amount of space I used to show a “teaching, suggestion, or motivation” to combine references may have been overkill? Time will tell. Everyone is squabbling over what it all means right now so I'll just sit this out. USPTO has issued some preliminary instructions though. Disclaimer, I am not a lawyer, this isn’t legal advice ,blah,blah…


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