A quote from Hal Wegner back from before KSR was decided:

The general business press provides a constant drumbeat that the standard of patentability is too low when, in fact, dual causes of greater significance are (a) the random grant of bad "gas pedal" patents – that can happen in any system – coupled with (b) the absence of a judicial system that permits their reliable elimination when the case is heard outside the ten or so patent-experienced venues. No matter whether KSR is reversed or affirmed, no matter how much higher the standard of patentability may be set in KSR, this will have nothing to do in the end with the day to day gristmill of patent examination: “Gas pedal” patents will continue to be issued. The question then is how will they be eliminated under any standard of patentability, absent judicial reform?

The most important patent reforms needed are thus neither in a post-grant or any other PTO proceeding, but rather promptly fashioning a way to focus all patent cases in courts where there are patent-experienced judges.

Comparative Models, Meeting the Challenge in Europe and Japan: The problems faced by the United States today are hardly unique for the generalist judges that populate the trial courts around the world. The difference between the United States and leading foreign countries is that Germany, the U.K. and Japan have each separately made major reforms that are working quite well to provide prompt, efficient, predictable and reliable patent justice where the trial courts have judges with a general background.

And the view that jurisdiction over patent appeals should be returned to the circuit courts, developed by the General Counsel of Eastman Kodak, Cecil D. Quillen, Jr., Innovation and the U.S. Patent System, 1 Virginia Law & Bus. Rev. 206 (2006). Download file

posted by Solveig Singleton @ 12:52 PM |

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