The U.S. Supreme Court last week made it a little harder to get a patent on an invention, and harder to defend an existing patent against encroachment.
The decision could make existing patents a bit less valuable than before. Whether it will achieve the desired effect of spurring useful innovation or not is an open question.
In this particular case, a Canadian company called KSR International attached an electronic sensor to an adjustable gas pedal so computers on cars and trucks with electronic engine controls could tell the pedal’s position.
Another firm, Teleflex, demanded royalties, since it had a patent for a similar device. KSR refused, and they went to court, where KSR argued that such a combination would be obvious to anybody with knowledge in the field so the patent was invalid. A federal district court sided with KSR, but the U.S. Court of Appeals for the Federal Circuit, which was given jurisdiction over all patent cases in 1982, sided with Teleflex, the patent holder.
“For years the Supreme Court left patent law alone,” said patent attorney Howard Klein of Klein, O_Neill and Singh in CityIrvine, “but in the last five years or so it has issued several important patent-law decisions.” We suspect this is because it isn’t happy with the way the Federal Circuit court, which was given exclusive jurisdiction to achieve uniformity, has handled the field.
The high court seems to think the government is issuing too many patents for innovations that aren’t really new inventions. Patent law requires that to get patent protection, which confers the exclusive right to manufacture a given item a certain way, the innovation must be “non-obvious” to somebody of reasonable intelligence working in the field. “That’s an inherently subjective standard,” Klein said, but courts are accustomed to developing guidelines to handle such matters.
Justice Anthony Kennedy, writing for a unanimous court, argued that “Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may … deprive prior inventions of their value or utility.”
It will probably take years for the results in the real world to shake out. The idea behind patents is that granting an inventor or innovator the exclusive right to profit or benefit from his or her innovation for a period of years would encourage the progress of science and useful innovation. If the system has become too loose, granting patents for all kinds of trivial advances and thus discouraging people from pursuing fairly obvious improvements for fear of getting dragged into court or having to pay royalties, perhaps it’s time for a correction.
Expect plenty of litigation for several years. The Internet phone company Vonage has already filed for a new trial in a patent infringement case it lost to Verizon on March 8. If you hear keyboards clacking in the distance, it could be losing attorneys polishing their briefs and patent attorneys tightening up their applications for new patents.