IP Democracy: PFF Amicus Brief Decries Obviously Bad Patents

An amicus brief filed with the U.S. Supreme Court by Progress & Freedom Foundation senior fellows Jim DeLong and Solveig Singleton argues that “bad patents undermine the confidence of our intellectual property system and empower those who would abolish it.” The brief was filed in support of a petition for a writ of certiorari by the plaintiffs in KSR v. Teleflex.

According to a PFF press release:

At issue is a patent held by the respondent that claims “invention” of the combination of two pre-existing designs — an automobile adjustable accelerator pedal and an electronic throttle control. A district court ruled against the patent, finding that anyone with an undergraduate degree or modest industry experience “would have found it obvious” to connect the two devices. A Federal Circuit Court of Appeals panel vacated that judgment because the petitioners hadn’t found objective evidence that anyone suggested the combination before the respondents filed their patent.

DeLong and Singleton…believe the case is the perfect vehicle for High Court review because “every schoolchild knows what an accelerator pedal is.” They add that the case reflects the growing importance of intellectual property to the economy, the unease about patent quality, and the fact that the current standard applied by the Federal Circuit causes harm.

“The Federal Circuit’s test says, in essence, that all doubtful cases, all cases in the gray area, will be decided in favor of patentability. It has decided to run zero risk of rejecting a meritorious claim even at the cost of accepting numerous non-meritorious claims,” DeLong and Singleton argue. “This is not sensible doctrine. Nor is it in accord with the statutory language or the precedents of this Court.”

Posted by Mitch Shapiro on May 24, 2005 2:42 AM to IP Democracy