San Jose Mercury News - The Federal Circuit has contributed mightily to the madness

The San Jose Mercury News is running an interesting editorial that strongly criticizes the current patent system. It’s one of the first I’ve seen that places significant blame for the current situation on the Court of Appeals for the Federal Circuit. Sure, plenty have criticized the Court before, but none have used such strong language.

Clearly timed for the KSR v. Teleflex debate, the piece is chok full of money quotes. Here’s two:

“The Court of Appeals for the Federal Circuit, which handles all patent appeals, has contributed mightily to the madness by laying down a set of rigid rules that make it too easy to get a patent, virtually impossible to overturn one after it’s granted — and prohibitively expensive to even try.”

“To help decide this, the high court and Congress have, over many decades, issued guidelines that take into account prior inventions and the knowledge that an ordinary person working in the field would have. Unfortunately, the appeals court has concocted a three-part test for obviousness that sets an unreasonably high barrier for anyone seeking to invalidate a patent that simply combines old, established ideas into a new one. (During oral arguments this week, Justice Antonin Scalia, not exactly a dimwit, noted the test amounted to “gobbledygook.”) Inventors need a more clear and, yes, obvious, standard of obviousness.”