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Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia
Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia
Michigan Telecommunications & Technology Law Review
In KSR International Co. v. Teleflex, Inc., the Supreme Court addressed the doctrine of nonobviousness, the ultimate question of patentability, for the first time in thirty years. In mandating a flexible approach to deciding nonobviousness, the KSR opinion introduced two predictability standards for determining nonobviousness. The Court described predictability of use (hereinafter termed “Type I predictability”)— whether the inventor used the prior art in a predictable manner to create the invention—and predictability of the result (hereinafter termed “Type II predictability”)—whether the invention produced a predictable result—both as a means for proving obviousness. Although Type I predictability is easily explained as …
Interpreting Biological Similarity: Ongoing Challenges For Diverse Decision Makers, Sarah M. Cork
Interpreting Biological Similarity: Ongoing Challenges For Diverse Decision Makers, Sarah M. Cork
Michigan Telecommunications & Technology Law Review
Similarity is an elusive and complicated concept facing comparisons of biological molecules, as even minute changes to a molecule's structure can dramatically affect its function in the body. Yet the flood of biologic drugs on the market will increasingly force these similarity comparisons. These concerns are particularly relevant to two groups of drugs: families of biologic drugs that closely resemble each other in structure and function, here termed "similar-impact biologics," and the biosimilars, which are intended to closely approximate generic forms of biologic drugs. In bringing biologic drugs to the market, manufacturers are likely to face dual obstacles: FDA approval …
Internet Business Model Patents: Obvious By Analogy, Margo A. Bagley
Internet Business Model Patents: Obvious By Analogy, Margo A. Bagley
Michigan Telecommunications & Technology Law Review
This Article contends that part of the problem of Internet business model patents is the narrow view of analogous art employed by judges and USPTO examiners which largely excludes relevant "real-world" prior art in the determination of non-obviousness under § 103 of the Patent Act. Consequently, part of the solution lies in helping courts and the USPTO properly to define analogous art for a particular invention. To do so, judges and examiners must recognize the interchangeability of computer programming (i.e. "e-world" activities) to perform a function, with human or mechanical performance of the same function (i.e. "real world" activities). Such …
E-Obviousness, Glynn S. Lunney Jr.
E-Obviousness, Glynn S. Lunney Jr.
Michigan Telecommunications & Technology Law Review
As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …