More on Patents and KSR…

There was an article in todays NYT about an entrepreneur that recently won his patent case, in part, because of the KSR ruling. I’ve written about this here and here.

In summary, it stated that (emphasis mine):

The â??281 patent is INVALID because it is OBVIOUS and ANTICIPATED. The patent-insuit,
simply put, is a computerized method for securing debt with future credit card receivables.
While the patent inventor, Barbara Johnson, implemented an aggressive marketing and business
development program that brought this financing method to widespread use, she did not invent a
new business method. Rather, Johnson built on long-established prior art, packaged the idea in a
new way
, and marketed it aggressively.

There are multiple prior art references, not considered by the PTO when issuing the patent,
that render the patent invalid, especially in light of the Supreme Courtâ??s recent ruling in KSR Intâ??l
Co. v. Teleflex, Inc. In KSR, the Supreme Court opined â??[w]hen a work is available in one field of
endeavor, design incentives and other market forces can prompt variations of it, either in the same
field or a different one. If a person of ordinary skill can implement a predictable variation, § 103
likely bars its patentability.�

It’s not as strong an affirmation of KSR as most of us would like because in this case, the defendant presented additional prior art that, by itself, probably would have invalidated the patent.

Nevertheless, a good start.


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