Yesterday two events occurred that indicate that U.S. Supreme Court’s interpretation of obviousness under U.S. patent law in KSR v Teleflex may not be quite as expansive as portions of the Court’s opinion suggest.
First, the U.S. Court of Appeals for the Federal Circuit rejected a request by Vonage to vacate the decision in which Vonage was found to infringe on a patent owned by Verizon. The Federal Circuit did, however, note that Vonage could use the KSR decision in an appeal.
Second, the USPTO issued a memorandum to its Examining corps with a reminder that KSR should not be seen as a total rejection of previous tests, and that Examiners cannot simply reject a patent claim as obvious without providing an explicit statement of reasons.
In other words, patents are still valuable business assets. These early developments suggest that validity challenges to issued patents won’t be easy, even after KSR.