Re: TPW 6: Patent reform, FreeConference v. AT&T, and a paper trail for e-voting

J. Matthew Buchanan — Thu, 29 Mar 2007 23:38:47 -0000

Guys --

Great discussion on patent reform, particularly the court-based reforms that are already underway. If the last session of Congress showed us anything on this issue, it has to be that a comprehensive reform package is too divisive. Hopefully, new leadership chooses to tackle the issue by focusing on some of the issues that enjoy relatively broad support (there actually are a few).

We'll soon know if the Supreme Court leaves a new mark on the obviousness issue. You've done a nice job of summarizing the issue, but I'd caution against any approach that confuses simplicity (you say 'trivial') with obviousness. The law has always struggled with the issue of obviousness -- particularly with simple inventions. Some extremely simple inventions - and indeed innovations - might not have been brought forward absent patent protection.

In an interesting twist, the Federal Circuit has been highlighting the flexibility of its teaching-suggestion-motivation test while the world awaits the Supreme Court's decision in the KSR case, finding motivation to combine references (and therefore render a claimed invention obvious) in the "prior art as a whole" or "the nature of the problem to be solved" in at least three cases over the last few months. See our reviews of Dystar Textilfarben v. C.H. Patrick (http://www.fedcirc.us/case-reviews/dystar-texti...), Pfizer v. Apotex (http://www.fedcirc.us/case-reviews/pfizer-inc.-...), and Dippin' Dots v. Mosey (http://www.fedcirc.us/case-reviews/dippin-dots-...) on FedCirc.us for examples.

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Re: TPW 6: Patent reform, FreeConference v. AT&T, and a paper trail for e-voting