Columns

IP lawyer: Common-sense patent law – fact or legal fiction?

By Lawrence M Sung

The latest in a string of decisions of the Court of Appeals for the Federal Circuit regarding patent rights raises questions about the role of common sense in obviousness analysis

The innovation quotient of the US patent system depends on the integrity of the grant of valid patent claims and their enforcement. This falls short where the US Patent and Trademark Office (USPTO) allows claims whose illegitimacy must be tested in federal courts, which have less patent familiarity. The America Invents Act of 2011 sought to ameliorate this dichotomy by outfitting the USPTO with a robust review of its own patent-granting decisions through the creation of the Patent Trial and Appeal Board (PTAB). Further, this design came armed with a new procedure known as inter partes review: an enhanced vehicle for third-party challenges to granted patents.

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