The authors at Anticipate This! provide a good resource for those of us interested in IP and patents. They have posted a summary of the recent KSR decision by the US Supreme Court. If you’ve never read oral argument transcripts from the Supreme court, I would urge the reader to do so. It’s fascinating. No matter what you may think of the Supreme Court Justices politically, as a rule they are exceptionally sharp characters.
We scientists spend very little time with lawyers and judges, other than for the usual public drunkenness or bitter divorce proceedings, so we may not have a calibration point for gauging their scholarly expertise. Certainly reading transcripts or an actual decision will give the reader insights into who turns the big boat and what the rationale was.
I’m not a legal scholar- I’m more like a NASCAR fan. I like to watch the legal wreckage go flying through the air and the pit crews scrambling for cover. In this case, it looks like the USPTO may have to scramble to recalibrate the measure of obviousness. Hey, pass me a beer …
Lamentations on Chemistry 
Once again Gaussling, thank you for an important post.
Am I correct in guessing that simple binary mixtures of medicines will no longer be able to be patented, unless there is an “unexpected” synergism? Will someone soon submit a dose response curve for two medicines and show the sum and then claim a difference because the mixture does not act like the sum? Am I being too simplistic here?
Of course, we’ve known this possiblility ever since someone mixed sodium with potassium and noticed the dramatic change in mp for the mixture and earlier…
I did look at the transcript, I did not manage to read the whole thing. My observations:
1) The supreme’s seem to intererrupt each other and the lawyers a lot.
2) For guys who know everything, the supremes ask a lot of questions.
I think it is like a higher level of dissertation defense. The best policy is to get the supremes to argue with each other.
Lots of thoughts:
1) A UNANIMOUS DECISION. When was the last time that happened?
2) Prior to this ruling, “TSM” (teaching, suggestion, motivation) was the law of the land. Only if you could find specific prior art that taught, suggested,… combining known elements would it be possible to prove that an new invention was obvious. The neat thing about the TSM standard was that it was about as black-and-white as you could get, which is always a good thing in law – no upredictable or disagreeable judgements needed to be made. But it has lead to an excess of dubious patents, IMHO.
Now it looks as though your invention needs to pass the TSM test, but that still will not be enough. What will be enough? That was not answered in complete detail. Common sense applies, synergy applies, new functionality applies, going against existing teachings…
3) Plenty of job security for patent attorneys.
4) I also enjoy reading the bantor of the SCOTUS, which is lighter in these more corporate cases. There is a wholely different tone in violent crime cases, Bush v. Gore, … cases that dramitically involve individuals. But I always get the feeling that I just don’t “get it” – there is a lot of insider knowledge that I’m not quite privy too. There’s too much shorthand and many words that they use have different meanings than we use in everyday life. (Compare the legal meanings of “consisting of” versus “comprising of” when used in patents.)
5) I was involved as an expert witness for a couple of lawsuits last summer. It was my first experience with a courtroom. The big (unintentional) takeaway that I got from it was how political the process was. That left a bad taste in my mouth, but it is not something that I sense in the SCOTUS dialogues. At least in the courtroom, this about as close to “pure” law and justice as human beings can get.