I am no big fan of many Supreme Court decisions but today they got two patently right.
And in one case, they handed a big win to Microsoft, whose legal department is also seldom on my good list.
In both Microsoft v. AT&T, 05-1056 and KSR International v. Teleflex Inc., 04-1350, we saw an attempt to expand patent rights in ways which harmed innovation. In the first case, AT&T was trying to force payments on Microsoft’s foreign sales, while in the latter case Teleflex was trying to patent the basic idea of a brake pedal.
In both cases, it was the Supremes who applied the brake pedal.
In both cases the court also overruled lower courts, unanimously in the
case of Teleflex, 7-1 in the case of AT&T. More important perhaps
was the broad nature of the language employed by the court, especially
this line from Justice Anthony Kennedy:
"The results of ordinary innovation are not the subject of exclusive
rights under the patent laws. Were it otherwise patents might stifle rather than
promote the progress of useful arts."
To that I can only say amen. Patent rights must cover only specific inventions, not the idea of an invention. You must be able to build a better mousetrap. Unfortunately the court was not given the next step, the chance to invalidate business method patents because they do, in fact, keep you from building better mousetraps.
Maybe next time.
UPDATE: Rachel Krevens of Morrison & Foerster (gotta love that URL), who doubtless makes more money than I do, and has more legal credentials, adds this:
In KSR, the Supreme Court, in the latest of a string of recent
decisions overturning Federal Circuit patent decisions, rejected the Federal
Circuit’s longstanding obviousness test in favor of a clearly broader standard
based on the statue itself as well as a 1966 Supreme Court decision called
Graham v. John Deere. In essence, the Supreme Court has lowered the
bar for those who are trying to prove that a patent is invalid.
The courts got us into this mess, with lower courts allowing patents for math in the form of software, as well as business method patents. Legislators have never held this, yet this is assumed to be the law.
But what lawyers can do, lawyers can undo.
