NISCAIR Online Periodicals Repository

NISCAIR ONLINE PERIODICALS REPOSITORY (NOPR)  >
NISCAIR PUBLICATIONS >
Research Journals >
Journal of Intellectual Property Rights (JIPR) >
JIPR Vol.13 [2008] >
JIPR Vol.13(1) [January 2008] >


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]

Files in This Item:

File Description SizeFormat
JIPR 13(1) (2008) 7-18.pdf107.27 kBAdobe PDFView/Open
 Current Page Visits: 610 
Recommend this item

 

National Knowledge Resources Consortium |  NISCAIR Website |  Contact us |  Feedback

Disclaimer: NISCAIR assumes no responsibility for the statements and opinions advanced by contributors. The editorial staff in its work of examining papers received for publication is helped, in an honorary capacity, by many distinguished engineers and scientists.

CC License Except where otherwise noted, the Articles on this site are licensed under Creative Commons License: CC Attribution-Noncommercial-No Derivative Works 2.5 India

Copyright © 2012 The Council of Scientific and Industrial Research, New Delhi. All rights reserved.

Powered by DSpace Copyright © 2002-2007 MIT and Hewlett-Packard | Compliant to OAI-PMH V 2.0

Home Page Total Visits: 574192 since 06-Feb-2009  Last updated on 26-Aug-2014Webmaster: nopr@niscair.res.in