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KSR is a big case because it addresses the only significant patentability requirement that exists under U.S. law. I count four fundamental patentability requirements: statutory subject matter, utility, novelty, and nonobviousness. It is plain that in the United States statutory subject matter is as broad as human experience itself. Utility, a very lenient requirement, is also easily met in most areas of technology. Novelty too is also easily satisfied. So what we are really left with is the fundamental gatekeeper to patentability. Should the Supreme Court raise that standard, it will effectively cede a great deal of proprietary subject matter into the public domain. So KSR potentially affects every pending patent challenge, every application at the Patent Office, and basically every proceeding everywhere involving patent rights.


Copyright 2007, Fordham Intellectual Property, Media & Entertainment Law Journal, John R. Thomas.

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17 Fordham Intell. Prop. Media & Ent. L.J. 875-932 (2007)