Just recently, the Supreme Court finally heard oral arguments in the KSR v. Teleflex case. As discussed in a previous post, this case has serious implications in determining the standard of obviousness to be used by Federal courts in future patent litigation. Essentially, KSR is wishing for the standard to be lowered to limit the patentability of, in this case, combining two pieces of prior art. Professor Mark Lemley of Stanford University, initially was supportive of KSR’s position, but recently switched sides and signed an amicus brief in support of Teleflex. As previously stated here on Tech LawForum, Professor Lemley is an advocate of patent reform in general, and feels that the courts need to find and utilize objective evidence in making a finding regarding obviousness. It seems that Lemley was unsatisfied previously with how Federal Circuits were relying far too heavily on prior art in making such determinations. However, some recent decisions have shown the courts to be willing to utilize other sources (read: objective evidence) in determining whether the invention is obvious. Readers may enjoy a more in depth treatment of the issue by Professor Lemley himself in this panel discussion video. IPBiz has talked about Lemley’s change of heart as well, and emphasized the fact that a hindsight analysis of obviousness has already lowered the bar, thus ameliorating the change proposed by KSR. Lemley’s decision was informed by both a study giving such a theory traction, and articles indicating that courts are using information gleaned from places other than written prior art in making their judgements. In light of the Supreme Court’s comments and questions during oral arguments, which has been talked about on Patently-O and Promote the Progress, among others, it seems that the court is not in step with Professor Lemley and the Circuit Court’s attempt to retain the previous test.

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