KSR v. Teleflex was a huge event in patent law, not only because it showed a clear disconnect between the Supreme Court and lower courts, but because of the precedent that it overturned. The Graham v. Deere case of 1966 was an IP case in which the Teaching, Suggestion, Motivation (TSM) test was put into standard practice. Hindsight bias was supposed to be mitigated by screening patents for obviousness through a rigorous TSM test. In KSR v. Teleflex, the Supreme Court disagreed with the lower courts' opinion that the TSM test should be applied strictly.
The Supreme Court upheld common sense above the TSM test, which overturned a precedent of almost a half century. The problem was the overly rigid application of the TSM test; the Supreme Court asserted that people of ordinary skill are also people of ordinary creativity, and as such, allowed for more interpretation and implication in the test.
I think the implication of this decision will influence the way that patents are examined at the USPTO and the way that they are ruled on in court. Because we now apply the TSM test with more perspective and restraint, the opportunity arises for filers and holders of patents to create and exploit bad-quality patents. Such actions would lead to trolling, by allowing for a gray zone to exist, in which dangerous patents can emerge. However, the Supreme Court's ruling also allows for more flexibility and creative thinking in analyzing patents, which I believe is a great thing for modern times.
As we've seen, innovations in technology have outpaced reforms in IP regulations, which is the reason for gray zones in the patent war that are exploited by savvy lawyers. Additionally, it's what created the hostile environment in which technology firms seem to operate. In large part, IP regulations and the patent landscape dictate how industry players decide to engage each other; currently, it seems like companies are instinctively suspicious and defensive towards each other.
I think the Supreme Court's decision to value critical thinking and flexibility, by mandating a looser application of the TSM test, is a step in the right direction. When our laws and regulations don't complement technological innovations properly, it's necessary to allow for more case-by-case thinking.
https://www.youtube.com/watch?v=rJcoluK3_mc
I think the looser application of the TSM test may not necessarily create more opportunity for trolls to exploit as the changes made it more difficult to prove nonobviousness. Should a claim not fulfil the TSM test, it is still downright rejected, without the need to consider whether some creativity and common sense was involved. With the new standard creating ambiguity, there is definitely more case-by-case evaluation necessary. As a result, bad patents would come under greater scrutiny. Sure, there may still be a chance every now and then that bad patents are approved, but it is likely to be at a much lower rate than before. It is unfortunate for the examiners as their job scope is made more complicated now with the looser rules. I wonder if there is any significant difference in patent assessment duration now and before the KSR case.
ReplyDeleteI agree that bad patents might come under more scrutiny. In light of the discussion we had about silly patents, that's a relief. It seems like many inventions would fail the "M" part. What do you think?
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