Author(s)
Source
Texas Law Review, Vol. 85, 2007
Summary
This paper looks at whether the courts make it too easy to get a patent.
Policy Relevance
Some argue that the Federal Circuit Court of Appeals makes it too easy to get patents, and this hinders innovation. Evidence fails to support this argument.
Main Points
- Patents are only for non-obvious inventions; the FCA rule is that an invention is obvious if earlier technologies give the inventor a strong hint (the “teaching-suggestion-motivation” or TSM test).
- When an inventor challenges a patent examiner’s or court's ruling that an invention is obvious, the FCA upholds the rulings 64-65% of the time. In cases about obviousness, the FCA finds the idea obvious 58% of the time, and this rate has been increasing. A low affirmance rate makes sense because obviousness is a difficult factual question.
- The TSM test is only used 45% of the time in FCA obviousness cases; in those cases 52.4% find the invention obvious. Both rates are increasing.
- Many inventions can look “obvious” in hindsight; the Supreme Court has warned that hindsight is not a good basis for rejecting a patent.
- The TSM test encourages each patent claimant to explain their invention more fully, because this can hinder copycats with a new spin on the idea from getting patents.
- The concern that too many patents hinder innovation is based in theory, but has not been proven with empirical evidence.