JimIvey
Moderator
Senior Member
 
Posts: 2584
|
 |
Re: patent drafting post KSR
« Reply #10 on: Jun 28th, 2007, 8:58pm » |
 Quote  Modify
|
Maybe I should read the case again, but I see TSM as alive and well. For all the bashing of TSM they did, they only explicitly overruled the Fed Circuit's requirements that (i) the motivation in the prior art be exactly the same as applicant's and (ii) ... I forget the second one, but it was a similar rather onerous technical thingy that I never asserted anyway. Other than that, I never saw where TSM was any more than insulted -- not overruled and not significantly modified (aside from the two technical thingies). I recall some suggestions that TSM could be one of a number of ways to show obviousness, but nothing eliminated it as a viable framework for showing obviousness and nothing else was offered as an alternative.
But the Court was very clear that merely finding all the parts in the prior art somewhere was insufficient. As I recall, they may have described a rather modest level of requisite motivation -- perhaps lowering the bar in that respect. And, as I've ranted before, I have yet to see an examiner ever assess the level of skill in the art as required by Graham -- and addressed implicitly in TSM analysis. Until the examiners start addressing that, I'll be taking nearly all my cases through the BPAI.
Regards.
|
Forums
Help
Search
Members
Calendar
Login
Register
Reply
Send Topic
Print
Author
IP Logged
