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The 'Obvious' Importance Of Tuesday's Supreme Court Case

How big a deal is Tuesday's U.S. Supreme Court case, which will explore the "obviousness" test for issuing patents? Consider this observation from an Associate Press article on the Washington Post: That 85 percent to 90 percent of the patent office's work focuses on determining obviousness.

The estimate comes from Gerald Mossinghoff, a former commissioner of the U.S. Patent and Trademark Office. Yet the article notes that the Supreme Court hasn't ruled on obviousness since 1976. This case, KSR International vs. Teleflex, pivots on the combination of two existing technologies, and whether that combination was obvious.

Major patent holders are lining up on either side of the issue, with some such as Johnson & Johnson, 3M, and GE opposing change, while major tech companies including Microsoft, Cisco Systems, and Intel wanting change. There are proposals out there for changing the patent system, but it seems unlikely Congress is really going to roll its sleeves up on what to most voters is a complicated if not arcane policy matter. If there's going to be change, the courts seem a far more likely driver.

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