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Supreme Court Re-Invigorates 'Obviousness': KSR v. Teleflex Decision
On April 30, 2007, Justice Anthony Kennedy delivered a unanimous decision of the
U.S. Supreme Court in KSR International Co. v. Teleflex Inc., reversing the U.S. Court of Appeals for the Federal Circuit ('Federal Circuit') and, in effect, re-invigorating obviousness under 35 U.S.C. '103 as an available defense to a patent.
Under 35 U.S.C. '103 a patent is rendered obvious where:
the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
The Federal Circuit, interpreting '103 and prior U.S. Supreme Court guidance, propounded and has been applying the 'TSM test,' short for 'teaching, suggestion, or motivation.' According to the Federal Circuit, under the TSM test 'a patent claim is only proved obvious if 'some motivation or suggestion to combine the prior art teachings' can be found in the prior art, the nature of the problem, or the knowledge of a person having ordinary skill in the art.' Finding this test too 'rigid,' the U.S. Supreme Court reversed the Federal Circuit's finding of non-obviousness and advocated a more flexible approach.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.