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A decision in KSR International Co. v. Teleflex, Inc. is anticipated from the U.S. Supreme Court by the end of the current term. Much has already been written about this patent case, with a primary focus on the “who’s who” of technology companies supporting the petitioner’s argument — through both formal amicus briefing and statements in the media — that the Federal Circuit’s “teaching, suggestion or motivation” test for determining obviousness under 35 U.S.C. �103(a) should be discarded. These and other opponents of the current standard, which generally requires a party challenging the validity of a patent to present objective evidence in the form of tangible prior art, denounce it as an overly rigid framework precluding a common-sense view of what should be considered obvious to one of ordinary skill. The conventional wisdom appears to be that a rejection of the Federal Circuit’s test, and the consequential raising of the bar for patentability, will reward innovation by removing barriers to competition, and at the same time deter patent “trolls,” whose only business is patent enforcement.

This view oversimplifies the issue, however. A substantial number of both newer and established technology companies manage to simultaneously innovate in the form of development and commercialization of new products and protect those innovations through an active patenting strategy. In fact, there is a strong argument to be made that a Supreme Court decision in KSR that radically changes the obviousness analysis will actually be a blow to innovation, by removing one of the principal deterrents to the copying of novel inventions by business competitors, while at the same time eliminating a primary incentive for companies to invest in new technologies.

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