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Level Of Skill And Long-Felt Need: Notes On A Forgotten Future, Joe Miller
Level Of Skill And Long-Felt Need: Notes On A Forgotten Future, Joe Miller
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The Supreme Court's KSR decision transforms the way we think about patent law's ordinary artisan. The ordinary artisan, the Supreme Court states, is also a person of ordinary creativity, not an automaton. This transformation, which sweeps aside a contrary precept that had informed the Federal Circuit's nonobviousness jurisprudence for a generation, raises a key question: How do we fill out the rest of our conception, in a given case, of the ordinary artisan's level of skill at the time the invention was made? Reaching back to a large vein of case law typified by Judge Learned Hand's decisions about nonobviousness, …
Remixing Obviousness, Joseph S. Miller
Remixing Obviousness, Joseph S. Miller
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In April 2007, the Supreme Court, for the first time in 41 years, decided a case about the basic contours of patent law's nonobviousness standard. The case, KSR, upends 25 years of Federal Circuit jurisprudence, and on a legal requirement that every patent must satisfy. In this essay, I show how KSR dismantles two predicates that have long shaped Federal Circuit nonobviousness cases - namely, the intertwined premises that hindsight-driven distortion is the gravest risk to an accurate nonobviousness requirement, and that the person of ordinary skill in the art (from whose perspective nonobviousness is judge) is singularly uncreative. In …