The Supreme Court rocked the patent litigation world with its decision in KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727 (2007).  The ruling rejected any rigid test for figuring out whether existing knowledge makes a device, process, or method "obvious" and therefore not patentable.

KSR aimed to correct the work primarily of the Federal Circuit, which has exclusive jurisdiction over appeals in most patent cases.  But that court has kept largely mum about KSR.  That changed last Friday.

The case involved a multiplexer patent.  Translogic sued Hitachi for infringement and won an $86.5 million award plus a permanent injunction.  Hitachi meanwhile initiated proceedings in the U.S. Patent and Trademark Office to "reexamine" Translogic’s patent.  The PTO’s Board of Patent Appeals and Interferences upheld a conclusion of obviousness.  So did the Federal Circuit.

In doing so, the court confessed to making "a rather straightforward error" in KSR — something to do with overlooking the fact that obvious variants of prior art count as prior art.  In re Translogic Technology, Inc., No. 06-1192, slip op. at 15 (Fed. Cir. Oct. 12, 2007).  The court also tries on the hair shirt of conceding that its old obviousness test suffered from "rigid" application.  The garb hurts.

Barry Barnett

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