Yesterday, the Federal Circuit held patent claims invalid under the post-KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007), "obviousness" regime. The court rejected the district court’s emphasis on lack of "motivation" for the invention in prior art, noting that KSR "counsels against applying the ‘teaching, suggestion, or motivation’ (‘TSM’) test as a "rigid and mandatory formula[].’" The decision had the effect of invalidating for obviousness two claims in a patent concerning a compound, ramipril, which helps people with blood pressure problems. Aventis Pharma Deutschland GMBH v. Lupin, Ltd., Nos. 06-1530 & 06-1555 (Fed. Cir. Sept. 11, 2007).
In previous post-KSR cases, the Federal Circuit seemed coy about admitting that KSR changed the test for obviousness. But the shyness appears to have started wearing off.
Barry Barnett
