Not All Patents Are Created Equal: Bias against Predictable Arts Patents in the Post-ksr Landscape
نویسنده
چکیده
Investment in intellectual property is considered a shrewd business strategy. However, companies that invest heavily in patenting the results of research and development may later be surprised by their inability to generate revenue from their patent portfolios. This is because those seeking to enforce patents in the predictable arts may find themselves stymied by recent developments in patent jurisprudence, especially with respect to the doctrine of obviousness. By encouraging a common sense perspective and rejecting rigid formulations, the Supreme Court in KSR International Co. v. Teleflex, Inc. unintentionally injected a significant measure of subjectivity and irregularity into the obviousness analysis, which has led to an increase in the likelihood of a predictable arts patent being found obvious due to the wide array of rationales available to make such a conclusion. Another emerging trend in the post-KSR landscape is that the Supreme Court’s flexible approach in determining obviousness has created a bias against patents in the predictable arts. Part I of this paper defines the general contours between patents in the predictable arts and patents in the unpredictable arts. Parts II and III discuss how the holding of KSR and subsequent USPTO guidelines establish a bias against predictable art patents. In Part IV, this Article will examine two ways in which the bias against predictable arts patents manifests itself in patent invalidity
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