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January 10, 2012



In my opinion, SCOTUS' opinion in KSR International is disaster for determining obviousness/non-obviousness. Instead of relying upon the language of Section 103, as construed by the Federal Circuit, SCOTUS goes off on a "frolic and detour" of its own by injecting terms like "market pressure" and "common sense" that don't appear in Section 103 into the obvious/unobvious equation. As you correctly point out, that simply leads to subjective (not objective) determinations. If the "objective" TSM test was too rigidly applied by the Federal Circuit in KST International, then SCOTUS' subjective "I know it when I see it" test is even worse.

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