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The Supreme Court justices’ pointed questioning and spicy sarcasm at the oral argument in KSR International Co. v. Teleflex, Inc., No. 04-1350, suggest that they are listening to the national debate on the health of the patent system and the Federal Circuit’s involvement in that system. In KSR the Supreme Court is again grappling with the issue of how to best determine when an invention is worthy of a patent grant — that is, when it is nonobvious in view of the prior art.

The KSR issues arose out of the Federal Circuit’s decision vacating summary judgment of patent invalidity where the district court failed to correctly apply the teaching-suggestion-motivation (TSM) test for combining multiple prior art references. The Federal Circuit holding required that a district court make specific findings showing a teaching, suggestion or motivation to justify combining prior art in the particular manner claimed in the patent to support a refusal to patent under 35 U.S.C. 103.

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