Supreme Court set to steal the patent reform spotlight a second time?

The timing of the Supreme Court’s decision to hear the eBay v. MercExchange case is somewhat eerie, considering the controversy surrounding the injunctive relief issue in Congress. Now it appears the Court is set to steal the patent reform spotlight from Congress again.

Remember the proposal to reform the obviousness standard for patentability? Don’t feel bad if you don’t. Many people have forgotten that this reform was once on the table. The Federal Trade Commission recommended a tightening of the standard in its catalytic report, To Promote Innovation, the Proper Balance of Competition and Patent Law and Policy. Congress, so far, hasn’t taken that bait, electing to leave a change to the obviousness standard out of even the most comprehensive approach to patent reform, the Patent Act of 2005.

In another example of amazing (and somewhat eerie) timing, the Supreme Court is set to decide soon on a petition for certiorari in KSR v. Teleflex. The issue? A challenge to the Federal Circuit’s long-standing “teaching-suggestion-motivation” test for obviousness.

The Solicitor General recently recommended granting certiorari. Dennis Crouch cites some very interesting historical statistics that suggest that the Supremes will follow that recommendation….meaning that patent reform is set, once again, to leave the Capitol and walk across First Street to the Supreme Court.

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