Abstract

In April 2007, the Supreme Court, for the first time in 41 years, decided a case about the basic contours of patent law's nonobviousness standard. The case, KSR, upends 25 years of Federal Circuit jurisprudence, and on a legal requirement that every patent must satisfy. In this essay, I show how KSR dismantles two predicates that have long shaped Federal Circuit nonobviousness cases - namely, the intertwined premises that hindsight-driven distortion is the gravest risk to an accurate nonobviousness requirement, and that the person of ordinary skill in the art (from whose perspective nonobviousness is judge) is singularly uncreative. In place of hindsight dread and the dullard artisan, the Supreme Court gives us caution against overpatenting and the creative artisan. Perhaps most important is that, consistent with these new predicates, the Supreme Court revives its holding from 1950 that a combination claim, i.e., a claim that simply remixes prior art technologies according to their established functions, must be scrutinized with great caution because it is likely unpatentable. I propose an evidentiary presumption framework to regularize KSR's mandate.

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