Judging “obviousness”

There’s an interesting case moving through the U.S. Supreme Court: it goes to the heart of patent law and what is meant by “obvious.” To be granted a patent, an invention must be unique, useful, and “non-obvious.” A Canadian company (KSR) designed a gas pedal for SUVs with an imbedded sensor; after a competing company with the patent sued, a District judge ruled that any monkey with a toolbox could invent it:

A U.S. District judge in Detroit agreed with KSR that Teleflex's patent wasn't valid, because combining a sensor with an adjustable pedal was just too obvious. Meaning any old Joe in the field could have thought up the combination, and so Teleflex's innovation wasn't special enough to warrant a patent.

The U.S. Court of Appeals invalidated that ruling and now it’s gone to the Supreme Court who has to figure out just what this means:

Under current precedent, the law works like this: An existing patent may be invalidated for being obvious only if there is clear and convincing proof that some "teaching, suggestion or motivation" exists that would lead a person "of ordinary skill in that art to combine art and create new invention."

But "clear and convincing" is a high standard of proof, falling between the traditional standards of "preponderance of the evidence" (used in most federal civil cases) and "beyond a reasonable doubt" (the standard for finding someone guilty of a crime).

Here’s why this is a case to watch: some big companies like Microsoft, Apple, and IBM want to lower the threshold for “obviousness” so that they can backhand all the junk patents that chip away at the intellectual property that anchors their businesses. Or, one could argue, it could consolidate intellectual property around only the biggest companies with the best lawyers, forcing smaller companies out of competition. Stay tuned.