Federal Circuit Chief Defends 'Obviousness' Test
In surprisingly blunt terms, Supreme Court justices Tuesday made it crystal clear that they are upset with the nation's patent system, the lawyers who litigate under it and the appeals court that referees it.
During a lively -- bordering on raucous -- hour of arguments on what makes an invention so obvious that it does not deserve a patent, justice after justice piled on criticism of the U.S. Court of Appeals for the Federal Circuit's three-part "teaching-suggestion-motivation" test for determining obviousness, an issue that arises in virtually every patent application and appeal. The test has been criticized as too patent-friendly, resulting in a proliferation of junk patents that stifle competition.
"Three imponderable nouns," is how Justice Antonin Scalia dismissed the test, also calling it "gobbledygook" for good measure.
Chief Justice John Roberts Jr. called it "Federal Circuit jargon" that is inflexible and "worse than meaningless."
And when Justice Stephen Breyer said he had read the briefs in the case "15 times" and still could not understand the "motivation" prong of the test, Scalia chimed in, "Like Justice Breyer, I don't understand."
Details here from Tony Mauro of Legal Times via Law.com. Here's the transcript of today's oral argument: KSR International v. Teleflex, Inc.