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Unpublished Paper
AN ENHANCED STANDARD FOR REDEFINING OBVIOUSNESS: WHY KSR DOES NOT WORK AND A PROPOSED SOLUTION TO A SUBJECTIVITY PROBLEM
ExpressO (2008)
  • Aaron P. Davis, University of Florida
Abstract

This paper will evaluate the background and evolution of the obviousness requirement of patentability established by 35 U.S.C. § 103, including an in-depth analysis of the landmark decision in KSR v. Teleflex and its subsequent confirmation in Leapfrog v. Fisher-Price. Next, the study will explain why the Supreme Court decision in KSR is ineffective and propose a solution to the KSR problem using a hybrid test, to be explained further, which generally combines the elements of the Graham test with the standard TSM approach adopted by the Federal Circuit post-Graham, and institutes a grace period by which an inventor will have the opportunity to prove invalidity by recreating claims. The hybrid test will be incorporated into past cases to demonstrate how this objective standard of obviousness is more effective. Finally, the analysis will conclude with a summary of 35 U.S.C. § 103, a brief skepticism of the KSR flexible approach to the TSM test, and support for the hybrid test.

Disciplines
Publication Date
January 27, 2008
Citation Information
Aaron P. Davis. "AN ENHANCED STANDARD FOR REDEFINING OBVIOUSNESS: WHY KSR DOES NOT WORK AND A PROPOSED SOLUTION TO A SUBJECTIVITY PROBLEM" ExpressO (2008)
Available at: http://works.bepress.com/aaron_davis/1/