quick post on KSR v. Teleflex

Because it is relevant to my Friday exam, I’m currently reading KSR v. Teleflex, one of the Supreme Court patent decisions which came out yesterday. It isn’t the best-written decision I’ve ever read, but the implications are fairly far-reaching for many important software patents.

The nutshell is this: the Supreme Court found that the Federal Circuit (which handles all patent appeals) has generally been too strict when trying to decide whether or not a patent is ‘obvious.’

Specifically, the Supreme Court found that when you have invention A, and invention B, and combine them to make invention C, the court should be very careful to ensure that the combination of A and B isn’t obvious.

Now, as an example of that, take every patent you’ve ever heard of which was of the form ‘do X over the internet’. If X predates the internet, and the patent postdates the commercial viability of the internet, and the mechanism for doing X over the internet is straightforward, this ruling almost certainly invalidates that patent.

This isn’t a cure-all for bad software patents, or bad patents in general. It isn’t going to invalidate patents where the mechanism for the combination is tricky/complex/non-obvious, and it isn’t going to make software unpatentable. But it might kill off some of the worst trolls who added the least value to the overall system, and that isn’t a bad thing.

As a nice little bonus, the court also makes it explicit that over-patenting can retard the ‘Progress of Science’ and hence have Constitutional implications. The Federal Circuit hasn’t always behaved as if this is the case; having the Supreme Court make this broad policy point clear and explicit should hopefully help correct the Federal Circuit’s worst excesses.

Thankfully, lots of smart people who aren’t taking exams this week are blogging about this if you want to read about it in more depth. Have a blast, let me know if you find anything interesting so I can sound smart on Friday ;)