Great discussion on patent reform, particularly the court-based reforms that are already underway. If the last session of Congress showed us anything on this issue, it has to be that a comprehensive reform package is too divisive. Hopefully, new leadership chooses to tackle the issue by focusing on some of the issues that enjoy relatively broad support (there actually are a few).

We’ll soon know if the Supreme Court leaves a new mark on the obviousness issue. You’ve done a nice job of summarizing the issue, but I’d caution against any approach that confuses simplicity (you say ‘trivial’) with obviousness. The law has always struggled with the issue of obviousness — particularly with simple inventions. Some extremely simple inventions – and indeed innovations – might not have been brought forward absent patent protection.

In an interesting twist, the Federal Circuit has been highlighting the flexibility of its teaching-suggestion-motivation test while the world awaits the Supreme Court’s decision in the KSR case, finding motivation to combine references (and therefore render a claimed invention obvious) in the “prior art as a whole” or “the nature of the problem to be solved” in at least three cases over the last few months. See our reviews of Dystar Textilfarben v. C.H. Patrick (http://www.fedcirc.us/case-reviews/dystar-textilfarben-v.-c.h.-patrick.html), Pfizer v. Apotex (http://www.fedcirc.us/case-reviews/pfizer-inc.-v.-apotex-inc.html), and Dippin’ Dots v. Mosey (http://www.fedcirc.us/case-reviews/dippin-dots-inc.-v.-mosey-et-al.html) on FedCirc.us for examples.