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In blunt terms, the U.S. Supreme Court justices expressed their unhappiness with the nation’s patent system and the appellate court that referees it. At issue in KSR International v. Teleflex, No. 04-1350, is whether the U.S. Court of Appeals for the Federal Circuit has erred in holding that a claimed invention cannot be held to be “obvious,” and thus unpatentable in the absence of its three-part “teaching-suggestion-motivation” test for determining obviousness. The test has allegedly led to a proliferation of junk patents that stifle competition. Justice Antonin Scalia called the test “gobbledygook.” Chief Justice John G. Roberts Jr. called it “worse than meaningless.” Justice Stephen G. Breyer said he had read the briefs in the case “15 times” and still could not understand the “motivation” prong of the test. Under the test, anyone challenging a patent must offer evidence that there are prior teachings, suggestions or motivations in the field that make the challenged item an obvious development rather than a patentable innovation. Because such evidence can be hard to document, the test has been attacked for making it too hard for examiners to deny a patent application. James Dabney, a partner at New York’s Fried, Frank, Harris, Shriver & Jacobson who represented KSR in its challenge to Teleflex’s patent for an adjustable gas pedal for cars, told the court the test makes it very difficult to challenge a patent claim. Thomas Goldstein, partner at Akin Gump Strauss Hauer & Feld who represented Teleflex, warned the justices that if they come up with a completely new test, millions of patents that were reviewed or upheld under the old standard could be challenged in court. The justices also heard oral arguments in Massachusetts v. Environmental Protection Agency, No. 05-1120, a case involving global warming. The EPA had decided in 2003 that it did not have authority under the Clean Air Act to regulate carbon dioxide emissions, and that because of scientific uncertainty about the effect of global warming, it would not regulate emissions even if it had the power to do so. Though Massachusetts Assistant Attorney General James Milkey told the court he was not asking for a “judgment on the science of climate change,” the justices debated global warming, as part of their inquiry into whether the states had standing to sue. Scalia, recalling his own 1992 ruling on standing, Lujan v. Defenders of Wildlife, said that harm had to be imminent in order for the suing party to achieve standing. “When is the predicted cataclysm?” he asked. “It’s not so much a cataclysm as ongoing harm,” Milkey replied. Roberts also seemed doubtful on the standing issue. He said testimony about the future impact of EPA regulations on global warming was “spinning conjecture on conjecture” and insufficient to give the states standing. He said that there was more scientific uncertainty about global warming than, for example, the effects of lead in gasoline. Milkey countered that when lead was regulated in 1973, “there were huge amounts of uncertainty at that time.” (See Page 24 for an an article on oral arguments for Bell Atlantic v. Tuombly before the U.S. Supreme Court.)

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