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Patently Clear

Alan Sipress

For more than four months now, a small - but not inconsequential - group of U.S. Supreme Court watchers has been waiting anxiously for a ruling in the most important recent case you've probably never heard of. There have been repeated reports of an imminent ruling and they've all, obviously, been premature.

That's about the only thing obvious about this matter.

It's a patent case called KSR International v. Teleflex, or KSR for short. KSR manufactures gas pedals for cars. Instead of using a cable to connect the pedal to the throttle, the company uses an electronic sensor. Teleflex claimed it already has a patent for this combination of pedal and sensor and sued KSR for infringing it. The federal circuit court sided with Teleflex.

But this case really isn't about gas pedals. It's about what is "obvious" in patent law. For an invention to receive a patent, it cannot be something obvious to those who work in the particular field of technology. KSR claims that the combination of a pedal and sensor was an obvious invention and so Teleflex's patent is illegitimate.

Companies potentially have billions of dollars riding on the debate over what's obvious and whether the Supreme Court will change the standard for what can receive a patent. Hence the intense interest.

The court first heard the case November 28. Rumors of a pending verdict, often citing informed court sources, began to surface in early February.

More than a month ago, Harold C. Wegner, a partner in the international law firm of Foley & Lardner and a doyen of American intellectual property rights lawyers, noted the lengthy delay. "The long gestation period for the KSR opinion may manifest a difficulty the Court is having in grappling with the issue of "obviousness" and how a modified test should be refined (if at all)," he wrote in a widely distributed e-mail.

The Supreme Court under Chief Justice John G. Roberts Jr. has taken a heightened interest in patent cases, accepting half a dozen in the last two years, after the previous court largely steered clear of the area. But Wegner suggested early last month that the justices may now feel they bit off too much. "Perhaps the Court is now suffering from a case of "patent indigestion" and may well cut back on the number of patent appeals it hears."

Two week ago, Wegner told his email correspondents that "KSR is overripe for a decision...which could occur as early as tomorrow," though he noted April was also a possibility. Now that we're in April, Wegner is noting that patent prognosticators are far less confident about the outcome than they once were.

"At the time of the argument more than four months ago, petitioner's advocates were pointing to a February 9-0 reversal," he wrote this week, referring to KSR partisans. "The matter is clouded with likelihood of at least two separate opinions coming down from the Court."

Amid these gathering clouds, I decided to confer with the Post's Supreme Court reporter Bob Barnes. He noted at least one other case, Global Crossing v Metrophones, that has been queued up even longer. I asked him about the likely timing of a verdict in KSR. He told me authoritatively that the ruling could come Monday, when the court is back in session. Or the following week. Or any time in May or June.

But the ruling cannot come any later than June 30, when the justices end their current session. That much is obvious.

Unless they spill over into July.

By Alan Sipress  |  April 10, 2007; 3:58 PM ET  | Category:  Alan Sipress
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Please email us to report offensive comments.

>KSR claims that the combination of a pedal and cable was an obvious invention and so Teleflex's patent is illegitimate.

Don't you mean "the combination of a pedal and a sensor"?

Posted by: Chris | April 11, 2007 9:39 AM

It will be interesting to note that many inventions become obvious things to do once someone has done it. but many past achievements have been ridiculed as unworkable "balderdash" like flying machines, cotton gins etc.

Posted by: Jess | April 12, 2007 10:14 PM

What role of the Internet in the modern world?
We shall talk about

Posted by: WriglyB | April 24, 2007 4:33 AM

It is about time that the US Supreme Court has taken a stand on corporate interest by limiting the extension of patent rights ("Supreme Court changes "obvious" test for patents" 1/4/7). It is in everyones interest that inventors are rewarded for the fruits of their labors. However, it is not in the public's interests when that reward impinges upon the ability of others to conduct research and innovation. Justice Kennedy was correcting in suggesting that excessively extensions to patents rights have the possibility of stifling the progress of the useful arts. One just has to look at the biotechnology sector, where research has become exponentially more expensive with each coming year and with each round of royalty payments.

The next step for our courts and governments is to reduce the length of patents. The rate of technological development has speedup and there is no reason to extend patent terms. By reducing them, we promote the common progress of open knowledge and the betterment of humanity.

Posted by: Aron Ping D'Souza | May 2, 2007 12:48 AM

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