Teleflex Transcript

A transcript of the KSR v. Teleflex oral argument is available here. It sure sounds like the justices are not happy with the status quo:

MR. GOLDSTEIN: Justice Scalia, I this it would be surprising for this experienced Court and all of the patent bar–remember, every single major patent bar association in the country has filed on our side –

CHIEF JUSTICE ROBERTS: Well, which way does that cut? That just indicates that this is profitable for the patent bar.

(Laughter.)

MR. GOLDSTEIN: Mr. Chief Justice, it turns out that actually is not accurate.

JUSTICE SCALIA: It produces more patents, which is what the patent bar gets paid for, to acquire patents, not to get patent applications denied but to get them granted. And the more you narrow the obviousness standard to these three imponderable nouns, the more likely it is that the patent will be granted.

MR. GOLDSTEIN: Justice Scalia, that is not the point of these bar associations’ either. These bar associations, including the American Bar Association, the American Intellectual Property Law Association, have lawyers on both sides of all these cases. They’re looking for a test that has balance and that is what the Federal Circuit has done. Now, let me just say –

JUSTICE BREYER: As you know, we’ve had a series of cases and in these series of cases we have received many, many briefs from all kinds of organizations and there are many from various parts of the patent bar that defend very much what the Federal circuit does and there are many from parts of the patent bar and others who are saying basically that they’ve leaned too far in the direction of never seeing a patent they didn’t like and that has unfortunate implications for the economy. So if you’re going to these very basic deep issues, is there a reason for me to think, which I do now think, that there is a huge argument going on in those who are interested in patent as to whether there is too much protectionism and not enough attention paid to competition or whether it’s about right, or whether it goes some other way.
In other words, your argument now suggests all this is well settled, but I tend to think maybe it isn’t well settled and maybe it is a proper thing for us to be involved in. So what are your views since you brought it up?

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