Ruling on Patents Roils Companies

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Getting a patent got a little harder this week with the latest in a series of Supreme Court decisions. The case, in which KSR International challenged a Teleflex patent over an adjustable gas pedal, is likely to have the most impact on fields like biotechnology and software, where small firms play an important role.

In a unanimous ruling Monday, the court took its biggest dive into patent law for decades, broadening the standards for rejecting a patent. It showed the court's belief that too many of the patents that have been issued don't pass the key test of not being "obvious."

The decision sent many companies into a panic over the possibility of having patents challenged or not being able to win new patents. "Already I've had some of my clients overreact and say they are going file fewer patents," says Tim Teter, a patent law partner at the Silicon Valley firm Cooley Godward Kronish. That's a mistake, he says.

While the ruling does make patent standards more vague, companies should still file to protect inventions that are novel. Still, he admits that the decision throws out clear rules for what's considered obvious and necessitates a lot more legwork for companies. He's telling clients to do a better job of researching what patents exist and take more time and effort in explaining upfront the idea they want to patent. "That way they don't get a surprise five years down the road when trying to protect these things," he says.

It's still unclear how the new twist on standards will play out in existing patent cases, but it does give "more ammunition to defense lawyers" looking to pick a fight, says Teter. Because litigation is so time consuming and expensive, however, he doesn't expect a spike in patent cases.

Teter does predict that the ruling will help fast-moving fields like high technology, where new developments aren't always documented. Rather than rely on papers that don't exist to prove whether an invention is novel, companies will have more of a chance to "tell a story" in their patent application, he says.

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