Supreme Court to enter the patent reform debate?

The original reports that are viewed by many as catalysts for the patent reform movement in the United States include at least one reform proposal that, to date, has largely been ignored.  In To Promote Innovation, the Proper Balance of Competition and Patent Law and Policy, the Federal Trade Commission recommends a tightening of “certain legal standards used to evaluate whether a patent is obvious.”

This proposed reform of the patent law has so far received little to no attention.  The Patent Act of 2005, as introduced by Representative Lamar Smith, doesn’t address the topic, nor do either of the draft replacement bills.  There has been little, if any, debate on the issue in the various hearings held in the House and Senate.

Has the issue been dropped from the reform agenda?

No chance.  While Congress doesn’t appear too interested in tackling this subject, the Supreme Court is currently considering whether it should do so.

KSR International v. Teleflex, currently on petition for certiorari, involves a challenge to the Federal Circuit’s long-standing “teaching-suggestion-motivation” test for obviousness.  Many, including twenty-four law professors and several corporations, view the current test for obviousness as a hurdle that is too easy to overcome and have filed amicus briefs supporting the petition.

The issue in the case sounds strangely similar to the FTC recommendation.

What’s likely to happen?  At this point, no one knows, but the Solicitor General may hold the key.  The Court asked the Solicitor to file a brief expressing the views of the federal government on whether the petition should be granted (i.e., on whether the obviousness standard should be reviewed).  Some people believe the Court is likely to follow the recommendation made in the forthcoming brief, making it perhaps the most anticipated patent-related amicus brief in some time.  No word yet as to when we can expect to see the views of the government, but the best guesstimate (i.e., Hal Wegner), believes that a March or April hearing is possible if the Solicitor files the brief by early December.

If the petition for certiorari is denied, don’t look for the case to simply disappear.  Indeed, the most interesting angle on this case may just be the aftermath of such a denial.  It seems likely that patent reform lobbying efforts would venture down new paths if the Supreme Court elects not to weigh in on the issue.