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Feb/March 2010 firm newsletter

Federal Circuit Provides Consistent Patent System

Wall Street Journal: Letters To The Editor Arlen L. Olsen - Managing Partner In response to the November 28, 2006 article High Court Increasingly Takes Issue With Rulings on Patent Cases. I disagree that patent rulings made by the Federal Circuit have tilted too much in favor of intellectual-property rights ("As Patents Grow More Contentious, Battleground Shifts to High Court," page one, Nov. 28). The much needed creation of the Federal Circuit was intended to provide stability and consistency to previously unpredictable and incoherent intellectual property jurisprudence essential to our country’s constitutionally granted patent system. Prior to its creation, some regional circuits were loathe to even hold one patent valid. Since the Supreme Court couldn't possibly handle the case load needed to adequately address the often quickly changing intellectual property issues relative to technology, law, and business, the creation of the Federal Circuit has provided the much needed stability to our judicial system and helped reign in the inconsistencies previously prevalent among the regional circuits. I view what the Federal Circuit is doing as trying to find an objective standard to determine the legal doctrine of obviousness, which, as previous intellectual property law reveals, is obviously not an easy task to perform. The central issue the Supreme Court will address in the KSR case is the correctness of the Federal Circuit in placing a very stringent standard on the Patent Office and accused infringers in demonstrating that a patent claim is obvious. This standard revolves around “the suggestion test” which is a penumbra to the statutory law of obviousness. The “suggestion test” means the relevant prior art references must have a suggestion or incentive within the teachings of the references motivating one to combine their teachings to arrive at a legal conclusion of obviousness. Perhaps the Federal Circuit may not have gotten this test right, but lets give them credit for providing us with a markedly more stable and consistent patent system. rg/12/'>lung cancer systoms