Real Kato Blog: KSR vs. Teleflex

A recent Supreme Court ruling may have significant implications for the tech industry.

A recent Supreme Court decision, KSR v. Teleflex, established what may be a new standard for evaluating patent validity.

I've railed against patent blackmail before. These days, instead of protecting and fostering innovation, patents are being used to stifle innovation. Companies and individuals are filing patent lawsuits, using ridiculously obvious patents, as a way of extorting money from wealthy companies who are actually bringing novel and useful products to market. Sometimes these patents are simple rehashes of existing business practices, but combined with use of a computer or the Internet.

Apple, for example, is currently the target of several patent lawsuits... one of them is an ancient and vague patent about clicking different parts of a computer screen to change the screen's display contents. (Geez, NOBODY would ever have thought of THAT.) So companies now spend millions on building up their own portfolios of ridiculous patents, to defend themselves against this kind of litigation. That money could be better spent on real research and innovation.

But now, maybe that will all change. KSR seems to establish a new standard for patent validity. Previously, the standard was called the "teaching-suggestion-motivation" (TSM) test; it was designed to test whether a person of "ordinary skill" would have come up with the patent concept, given the basic building blocks of the concept (prior art). The idea of the TSM test was to eliminate the chance that a novel concept would be considered obvious in hindsight.

The Supreme Court now seems to suggest that the TSM test is being mis-applied. The new test is whether a person of ordinary skill and ordinary creativity would have come up with the patent's content. It remains to be seen whether thousands of existing patents are invalidated by a sea of challenge lawsuits, but that would be infinitely preferable to what we have now.

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