KSR – Overweeding Eliminates Some Desirable Growth.

Cutting down the TSM test is glorified as a worthy effort to eliminate ‘bad’ patents.  That, however, ignores the quantification of how many patents are ‘bad.’  All together, how many patents for sandwich pockets or internet concepts need there be to provoke a seachange in the presumption of non-obviousness?

Two areas likely to be affected by the new ‘feels obvious’ standard are innovations in crowded fields of art, and software building blocks.  While “unanimous”, the KSR opinion offers many vagaries and few standard elements.  Thus, if your client routinely patents each advance in its product line, or if each developed embodiment of an early-stage innovation is patented, then the concern is that patents in crowded fields of art will be hard to obtain from the PTO, and expensive to enforce/defend in court.  True story: an inventor, trying to acheive a much more efficient device, obtains 27 patents, each on his next-best, improved embodiment.  No product was ever sold that those patents cover.  But, numbers 28 & 29 were the innovation he’d been working to acheive, and those were incorporated into all devices sold by all makers.  If, (and one only can presume) a company wanted to infringe 28 & 29, then they could reverberate all of the noise and pithy remarks from KSR into a loud obviousness defense.  ‘Every maker knew of the need and the problem, and all wanted to acheive the same result, and 28 & 29 are not patentable over patents 1 thru 27 or other art in this “crowded” field.’  That, IMO, makes KSR a bad solution.

The same concern attaches to software building blocks.  All the complainers say that this routine or programming element are known, and no combination of those should be patentable.  Why are those known?  Because the inventors disclosed them.  If there is no option to patentalby protect newly-developed software building blocks and routines, then trade secret protection is the better option.  That results in less disclosure, and IMO less innovation by all.

I could go on, but it’s time to use my trade-secret method of picking the winner of tomorrow’s Kentucky Derby.