Tech Businesses Ask Supreme Court to Reject ‘Obviousness’ Standard
More industry leaders came forward to ask the Supreme Court to overturn a recently imposed patent standard they called inappropriate for the rapidly evolving tech industry. In its decision in KSR International v. Teleflex, the U.S. Appeals Court, Federal Circuit, said patent applications can be rejected as “obvious” only if specific documentation is brought to court or to examiners that someone had already suggested the idea (WID Aug 24 p7).
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The decision frustrated groups involved in technology, Internet and software businesses, including Time Warner, InterActiveCorp and Viacom. In a joint amicus brief filed with the court last week, the companies said the nature of technology makes providing prior evidence an undue burden on the industry. “Technology advances through rapid electronic exchanges of information with minimal traditional documentation,” they said. Staying on the cutting edge of the business means sometimes patents and articles can’t “keep up with the latest developments.”
The appeals court’s requirement “distorts” the patent system and can only result in excessive civil suits and settlements, the companies said. The brief urged the court to “return to a more flexible approach that allows courts to consider different evidence of obviousness as appropriate for different technologies.”
Intel and Micron painted a future clogged with lawsuits and companies afraid to innovate. In an amicus brief, they said the standard enacted by the court “affords companies an incentive to redirect their research efforts away from truly novel projects toward comparatively straightforward combinations of existing technology.” A company whose management thought it could satisfy evidentiary requirements “almost invariably must endure the risk and expense of a trial to do so.”
In an amicus brief, the Business Software Alliance (BSA) said “the complexity of technology products provides a fertile field for unjustified patent claims based upon combinations of preexisting inventions.” “Patent speculators” could apply for protection of these combinations, forcing companies to “accumulate patents defensively,” BSA said: “[This phenomenon imposes huge transaction costs on businesses and the patent system and obstructs real innovation.” The Supreme Court will hear oral argument in the fall.