It’s great that the Supreme Court is now pushing out same-day transcripts or oral arguments. As a result, we already have up a transcript for today’s tete-a-tete (KSR INTERNATIONAL CO. v. TELEFLEX, INC., ET AL., No. 04-1350) concerning the so-called “obviousness” test in patenting.
This is important stuff, and changes — which look inevitable, based on justice comments this morning — could have a wide-ranging impact across a range of companies in all sectors, from consumer products, to life sciences, to information technology. We had justices calling the curent Federal Circuit standard vague, gobbledy-gook, and generally un-useful to everyone except the lawyers being paid to lawyer the thing. Here is Justice Scalia pointing out how absurd the current non-obviousness standard remains, despite its supposed universality:
It is misleading to say that the whole world is embraced within these three nouns, teaching, suggestion, or motivation, and then you define teaching, suggestion, or motivation to mean anything that renders it nonobvious. This is gobbledygook. It really is, it’s irrational.
Which bring about the following entertaining exchange:
MR. GOLDSTEIN: Justice Scalia, I this it would be surprising for this experienced Court and all of the patent bar — remember, every single major patent bar association in the country has filed on our side –
CHIEF JUSTICE ROBERTS: Well, which way does that cut? That just indicates that this is profitable for the patent bar.