The KSR Teleflex Decision. Has it really changed the results from the Federal Circuit?
I had planned to stop writing so much on one subject but a recent article caught my eye.
Emer Simic, writing in the Quarterly Journal of the AIPLA (Volume 37, Number 2) has done an examination of all the Federal Circuit cases since KSR - two years of data.
Simic's findings is that there has been no wholesale increase in obviousness since the KSR rulings from the Supreme Court. The Federal Circuit found patents obviousness in 51% of the cases, in accord with previous results.
Reporting on other studies Simic also observed that the Teaching - Suggestion - Motivation (TSM) test did not dominate Fed Circuit decisions - being used in only 45% of the cases.
I mentioned in Part III that I hardly ever used TSM arguments because I usually find better arguments to use in office actions.
So a preliminary view may be that the Supreme Court ruling in KSR may have been much ado about nothing.
We may know better after a few more years of decisions.
KSR Teleflex Decision
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Mike Ervin
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