KSR – It’s Not What The COA Said, but We May Not Say What It Is.

I reprise my comment from Nov. 29th, after the O/A to the Court of Supremes.

In the end, though, the outcome in KSR is predictably like the broadening done in Hilton-Davis and Festo.  The strict test will be supplanted by a more flexible standard for proving obviousness.”

Today’s KSR ruling acknowledges that the TSM approach does prove obviousness, and that there “is no necessary inconsistency between the idea underlying the TSM test and the Graham analysis.”  After that double-negative, the Court fails to pronouce a replacement standard.  It is ‘as they say’ now, and not what they said.

So, first, it was written that any of several modes of proof will work for equivalence, and now, that same sort of ‘totality’ of proofs approach will be applied to proving obviousness.  All this provides is vagary, and one borne out of a 1952 statute that does not set explicit standards.  From that statutory omission, the minds of reasonable robed figures may disagree about what proves what and what standard might best apply.  But, they are unanimous in rejecting rigidity.