Tulane University School of Law Public Law and Legal Theory Research Paper Series Research Paper No. 06-03
This paper looks at whether the courts allow too many bad patents.
The Federal Circuit seems to be fair in excluding vague or unclear evidence that a patent is bad.
- The statute requires that patents are for techniques that are not obvious. Case law explains that if previous work in a field suggests that a technique be tried, the technique will be considered obvious and no valid patent can be granted (“the suggestion test”).
- Critics argue that the Federal Circuit’s cases insist that a “suggestion” in prior art must be documented, ignoring undocumented suggestions. Therefore patents are being granted for inventions that ought to be considered obvious.
- A review of three years of cases shows that the Federal Circuit excludes undocumented evidence only when it lacks enough detail and analysis to be reliable.
- The “suggestion test” seems to reduce the mistaken denial of patents due to too much reliance on suggestion evidence. But it might increase the mistaken grant of patents by patent examiners.