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Title: Concept of Obviousness: Scenario post KSR International v Teleflex Inc
Authors: Pareek, Ashish
Singh, Shivendra
Keywords: Non-obviousness
TSM test
Hindsight bias
Common sense
Graham factors
Synergism test
Issue Date: Jan-2008
Publisher: CSIR
Abstract: ‘Non-obviousness’ is a fundamental requirement of patentability under all patent jurisdictions across the globe. The paper maps the evolution of ‘obviousness’ as a concept under the US patent law. It then ventures into implications of the much awaited ruling of the US Supreme Court in KSR International Co v Teleflex Inc which has dynamized the known principles and the validity of pre-existing tests for the determination of ‘non-obviousness’ of patent claims. In US, the law was thought to have settled after Graham v John Deere but the Federal Circuit Court in the 1980s relied upon the TSM test which, although flayed by critics, made the entire process more certain, accurate and practically advantageous. The impetus of the paper is to make a case in favour of the TSM test, which the Court, however did not expressly reject, yet sidelined by showing its reluctance towards its application. The latest ruling of the Court reverts back to the Graham factors and further adds a number of abstract ‘secondary considerations’ like common sense, effects of the market demand, objective reach of the claim etc. which ask for overwide discretion and subjectivity in the process.
Page(s): 7-18
ISSN: 0971-5544
Source:JIPR Vol.13(1) [January 2008]

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