The Supreme Court recently decided to hear KSR Intern. Co. v. Teleflex , in which the appellant challenges the traditional Federal Circuit "teaching-suggestion-motivation" test for obviousness challenges to patent validity. This test requires that a party attacking a patent as invalid for obviousness must present objective evidence of a particular teaching, suggestion, or motivation in the prior art to combine prior art references. KSR’s petition for certiorari was supported by the Solicitor General, and corporations such as Microsoft and Cisco Systems participated in "friends of the court" briefs. The USPTO has also abandoned its traditional neutrality and is supporting the Solicitor General’s position.
The case is currently being briefed, and we expect oral arguments and a decision sometime next year. A Court ruling adopting the Solicitor General’s recommendation has the potential to open the floodgates of patent litigation. For example, even if a patent has been held valid in a prior litigation, a future patent defendant, or a defendant in a pending case, may well be able to obtain a judgment of invalidity under a new Supreme Court standard. Conversely, by making patents more vulnerable to attack, it could actually make plaintiffs more wary of proceeding with less than certain claims.