The Supreme Court has generally avoided patent cases in recent
years, making the decision in the case between two car accelerator
pedal manufacturers of vital importance. At issue is how obvious
something needs to be before it is denied a patent.
Patent law says that obvious inventions cannot be patented,
leaving it open to courts and practitioners to define what is and
what is not obvious. Many companies believe that too many very
obvious inventions are allowed to be patented in the US, something
that is acting as a barrier to innovation.
The case at the Supreme Court is between Teleflex and KSR.
Teleflex invented an accelerator pedal for cars which combines two
existing technologies: adjustability for the height of the driver
and an electronic, rather than mechanical, connection to the car
engine.
When KSR produced a pedal with the same functions for a rival
car company, Teleflex sued it for patent infringement. KSR argued
that the combination of the two technologies was obvious and won
its case. That ruling was overturned on appeal, though, and the
case has gone all the way to the Supreme Court.
The hearing opened yesterday, and judges' comments seemed to
indicate support for the argument that too many obvious inventions
are granted patents.
Justice Anthony Kennedy asked why it was such "a big deal" to
combine the adjustable and electronic pedals. "Certainly this
inventor would not be the only one to think that the two could and
should be combined," he said.
Another judge also seemed to illustrate his antipathy to the
patenting of the obvious when he wondered to the court if he would
be able to win a patent for moving his garage door opener from the
bottom of the door to the top because it had been chewed by
raccoons.
The case is being closely watched, and some of the world's
biggest technology companies have filed friend-of-the-court briefs
to argue that leniency on obvious patents damages the technology
industry.
Microsoft and Cisco are among the firms that have filed papers
arguing that leniency on obviousness makes it too easy for people
to file patents then sue other companies for infringement of their
patents.
Companies in more traditional industries, though, including
Johnson & Johnson and General Electric, have filed papers
arguing that a change to the way the law is interpreted now would
undermine many existing patents and provoke a flood of
litigation.
The court seemed alive to that possibility. "If we see it your
way,'' Justice David Souter asked the lawyers for KSR during the
hearing, "are there going to be 100,000 cases filed tomorrow?"
The Supreme Court could challenge a test employed by the Federal
Circuit Appeals Court for years to decide obviousness, and that
challenge has the backing of the US President's administration.
The Circuit Appeals Court has for a long time used a test for
obviousness which says that in order to challenge a patent on
grounds of obviousness a party must show that there existed a
"teaching, suggestion or motivation" that would lead a skilled
person in the field to create the patented invention.
That test is under heavy fire in the case, with Chief Justice
John Roberts describing it as "Federal Circuit jargon", Justice
Antonin Scalia calling it "meaningless" and Justice Stephen Beyer
saying he did not know what the 'motivation' test meant.
Deputy Solicitor General Thomas Hungar, for the Bush
administration, said that the test "is contrary to the Patent Act,
irreconcilable with this Court's precedents and is bad policy".
