[Ip-health] Wall Street Journal editorial: Patently Obvious

[Thiru Balasubramaniam]

Patently Obvious
May 3, 2007; Page A16

We can't believe we're writing this, but the Supreme Court is restoring
some sanity to America's runaway patent law. A year ago, it gave judges
much-needed flexibility in granting or denying permanent injunctions in
eBay. And this week it took another positive step in KSR v. Teleflex,
which dealt with the design of the humble gas pedal but has far larger
consequences.

In striking down a Teleflex patent on a gas pedal, the High Court
showed how easily patent law can "stifle, rather than promote"
progress, in the words of Justice Anthony Kennedy's unanimous opinion.
The question was whether a pedal design patented in 2001 was nothing
more than an "obvious" combination of previously existing designs. The
trial court ruled it was obvious, and invalidated the patent. An
appeals court overruled, but the Supremes sided with the trial court.
In doing so, the Justices rebuked the appellate patent court for having
raised the bar too high in assessing "obviousness."

This is important because it will help rein in what has become a
proliferation of patents for increasingly small or dubious technology
adaptations. This in turn is damaging innovation by throwing more and
more business decisions into patent court.

Federal law requires that patents only be granted for non-obvious
innovations. This is because patents ought to protect inventions that
require a discovery, a leap of logic or imagination. An example that
Justice Kennedy cites in Teleflex is that of a battery that used an
electrode previously thought unsuitable for that purpose. An inventor
discovered that the conventional wisdom was wrong, and a new type of
battery came into being.

The Teleflex gas pedal, by contrast, combined elements of existing
pedals in a way that neither defied the conventional wisdom nor
resulted in novel, unexpected benefits. The fact that no one had
combined those elements in that particular way was not, the Court
ruled, sufficient to conclude that the combination merited a patent.

More broadly, Justice Kennedy wrote that the federal courts had adopted
too strict a standard for invalidating patents. This could have broad
ramifications. Our patent system is only as good as the bureaucrats who
grant the patents and the courts that enforce them. So if a legal
standard allows dubious patents to be enforced, then innovation and the
economy may suffer.

This is the point overlooked by some of our libertarian friends, who
argue that because property rights are good, and a patent is a kind of
property right, then all patents must be good. But only a good patent
is good -- that much should be obvious. A bad legal standard allows bad
patents to be enforced against legitimate competitors, and it tells the
folks at the Patent Office to be less careful in issuing patents than
they should be.

Teleflex is the latest in a series of cases that have tried to better
define the proper limits and roles of patents. This is not partisan or
ideological work, and it won't get much attention in the next Supreme
Court confirmation fight. But it is vital to promoting innovation in a
competitive economy, and is worth applauding.

   	URL for this article:
http://online.wsj.com/article/SB117815853947390467.html

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@keionline.org