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The US Supreme Court heard oral arguments in the case of KSR International v. Teleflex, in which the limits of combination patents and so-called obvious patents are being considered. According to several wire reports, KSR argued that its design for adjustable vehicle accelerator pedals does not violate a patent held by Teleflex for a similar gizmo, because Teleflex did not legitimately invent anything when it combined two existing technologies in an obvious way, and does not, therefore, deserve the patent.

Patents are often granted for trivial improvements to existing technologies or for combinations of technologies that are often deemed obvious, and this unfairly suppresses competition in the marketplace, KSR maintained.

"It's misleading to say that the whole world is embraced within these three nouns. This is gobbledygook. It really is; it's irrational,'' he sputtered.

Chief Justice John Roberts declared it "worse than meaningless, because it complicates the question rather than focusing on the statute."

Justice Stephen Breyer couldn't imagine how a court might determine whether a "motivation" existed for a new product.

But Teleflex warned that the consequences of mucking about with a 20-year-old standard - a gold mine for lawyers due to its vagueness - could be "dramatic instability," an issue to which Justice David Souter seemed sympathetic. "Are there going to be 100,000 cases filed tomorrow morning?" he wondered.

But Justice Scalia asked, "does it make sense to assume that patents are valid under a test that's been erroneous for 20 years"?

Justice Souter observed that "if the error is common enough and long enough, the error becomes the law''.

The IT sector is generally behind the idea of cutting out such patents, as it costs considerable money to research prior patents and fight weak ones in court. Intel Corp. and Cisco Systems are two heavy hitters from the IT industry that favour raising the bar. The open source community is likewise in favour, although its political influence is negligible. Interestingly, the Bush administration also weighed in on behalf of KSR, in a rare moment of lucidity.

But other, "Old Economy" sectors, like Big Pharma, depend on insignificant or obvious "innovations" to maintain their exorbitant prices and subsequent profits. One example is the antihistamine fexofenadine, marketed by Aventis Pharmaceutical as Allegra. When the patent expired, and generic fexofenadine began to appear on the market, Aventis introduced Allegra-D, the same drug, merely combined with the decongestant pseudoephedrine. You don't need a Ph.D. in pharmacology to figure that one out. The product's only purpose is to extend the patent. And there are scores of drugs and thousands of other products just like it.

If the Supremes decide in favour of KSR, and offer new, clear guidance on what's too obvious to be protected by patents, Allegra-D and tens of thousands of other patent-extending products like it will become vulnerable to challenge, and far more difficult to defend. It's no wonder that patent-dependent dinosaurs like Procter & Gamble, 3M, Johnson & Johnson, DuPont, and General Electric have weighed in on behalf of Teleflex.

IBM, which apparently can't decide if it's a true dinosaur or part of the historical footnote that used to be called the "New Economy," straddled the fence, filing a brief that essentially calls both sides in the dispute too extreme.

The decision is expected in July. ®

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