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New standards for patently obvious?

Janet Babin Nov 28, 2006

BOB MOON: Here’s a story that gives a whole new meaning to the term “patent pending.” This year the U.S. Patent Office has a backlog of 700,000 applications for new patents. Critics say far too many of these patents applications will get through the system. But a Supreme Court case today about a patent dispute over gas pedals could take some of the fuel out of the current patent system.

From the Innovations Desk at North Carolina Public Radio, Janet Babin reports:

JANET BABIN: The patent dispute focused on foot pedals used in some cars and SUVs. One company, Teleflex, holds a patent for an adjustable gas pedal that uses an electronic throttle and adjusts to different height drivers.

Another firm, KSR, used the design. Teleflex then sued for patent infringement. KSR argued that the Teleflex patent was really just a combination of two obvious things. Teleflex eventually won, and its patent on the pedal stands.

But in court today, some justices apparently disagreed with that decision. John Duffy is co-counsel for KSR:

JOHN DUFFY: Justice Scalia described the lower-court ruling as gobbly-gook. And I don’t think it was meant as a compliment.

To get a patent, the law basically says your invention has to be new, useful and non-obvious. It’s that last bit that was in dispute today. Duffy says under current standards, many things that are in fact obvious, like Teleflex’s foot pedal, now end up getting patented.

Or this patent, described by Harvard Business professor Josh Lerner:

JOSH LERNER:“The very idea of basically taking a piece of bread and toasting it on a grill to make it a little fresher — that’s been patented.

But hindsight is 20-20. Things often look obvious when they’re in front of us. And to date, the courts have tried to make sure inventors don’t suffer because of that. Arti Rai is a professor at Duke Law School:

ARTI RAI: A lot of psychologists have demonstrated that once you see something happen, you think it’s inevitable that it would have happened.

New economy firms like Microsoft and Cisco, sick of nuisance patent suits, sided with KSR and asked that the obvious standard be revised. But companies with lots of patents to protect, like Proctor and Gamble, sided with Teleflex. The decision likely won’t arrive till next year.

I’m Janet Babin for Marketplace.

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