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Revisiting Obviousness
Many technology companies believe the current law on obviousness hinders product development by extending patent protection to insignificant advances. The Court of Appeals for the Federal Circuit ('CAFC') reconfigured the obviousness framework established by the Supreme Court to limit the subjectivity of obviousness determinations by adding a 'teaching-suggestion-motivation' test, which is at the heart of a case the Supreme Court has recently agreed to consider. In Teleflex, the CAFC applied the 'teaching-suggestion-motivation' test in vacating a lower court finding of obviousness. Teleflex Inc. v. KSR Intern. Co., 119 Fed.Appx. 282 (Fed. Cir. 2005). Substantially unchecked to date, this will be the first full hearing on the obviousness doctrine in more than 30 years.
In 1966, the Supreme Court introduced a multi-factored obviousness framework involving the consideration of the scope and content of the prior art which measured the differences between the patented invention and the prior art against the backdrop of the ordinary level of skill of people working in the field at the time of invention. Graham v. John Deere Co., 383 U.S. 1, 17 (1966). The Supreme Court realized the difficulty of recognizing non-obviousness in hindsight and allowed the weighing of secondary considerations, including economic and motivational factors as objective indicators of non-obviousness. Id. The Federal Circuit supplemented the Supreme Court's obviousness doctrine with its 'teaching-suggestion-motivation' test to protect against the entry of hindsight into the obviousness analysis in all cases ' not just those in which evidence is offered of these secondary considerations. In re Kahn, 441 F.3d 977, 986 (Fed. Cir. 2006).
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