Chicago Kent Professor, and former Fed. Cir. clerk, Tim Holbrook has published a very interesting article at the Washington University Law Review’s Slip Opinions blog. In the article, Holbrook attempts to sort out obviousness and poses a new obviousness standard which he argues takes the best of the current Federal Circuit approach and the Graham v. John Deere standard created in the 1960s. Holbrook’s article is especially relevant as we await the Superme Court’s KSR v. Teleflex opinion. Here is an excerpt from the article:
Unfortunately, the debate and briefing at the Supreme Court have resulted primarily in a bifurcated world – those who agree with the Federal Circuit’s approach versus those who think we should return the state of the law to 1966, the year that the Supreme Court decided its seminal case Graham v. John Deere. The law of obviousness is not limited to this dichotomous world, however. This Essay posits a methodology that best balances the Federal Circuit’s concerns with certainty in the law with the concern of its critics that the obvious standard has been set too low. I propose a rebuttable presumption approach to obviousness, which best balances these concerns and is consistent with the Supreme Court’s approach in previous intellectual property cases.