tag:blogger.com,1999:blog-6851300.post116299591856949382..comments2023-11-05T06:06:12.057-06:00Comments on The 271 Patent Blog: Experimenting With KSR v. Teleflex - Can Hindsight Be Mitigated? (Part 2)Two-Seventy-One Patent Bloghttp://www.blogger.com/profile/02481083706071978817noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-6851300.post-1163022970738261942006-11-08T15:56:00.000-06:002006-11-08T15:56:00.000-06:00The problem with this relentless focus on the Fede...The problem with this relentless focus on the Federal Circuit's application of the TSM test is that it focuses on the few litigated cases, rather than the many examined cases. The BPAI applies the TSM test extremely rigidly, and after In re Lee, will never permit the use of "knowledge of persons of ordinary skill in the art". As most attorneys would probably agree, PTO examiners are, in general, below the ordinary skill level in any particular technology. Thus, if the examiners perceive the obviousness of the claim, then the ordinary practitioner, of higher skill, is even more likely to think the invention obvious. Consequently, the TSM test, as applied by the BPAI, pressures examiners to allow obvious applications because they know they will lose the appeal, so why bother to write an answer. Since Examiners cannot appeal reversals, there is no recourse or path for the Federal Circuit to address this problem. That may be why removal of the TSM test would be a positive for the patent system.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6851300.post-1163022958095989412006-11-08T15:55:00.000-06:002006-11-08T15:55:00.000-06:00The problem with this relentless focus on the Fede...The problem with this relentless focus on the Federal Circuit's application of the TSM test is that it focuses on the few litigated cases, rather than the many examined cases. The BPAI applies the TSM test extremely rigidly, and after In re Lee, will never permit the use of "knowledge of persons of ordinary skill in the art". As most attorneys would probably agree, PTO examiners are, in general, below the ordinary skill level in any particular technology. Thus, if the examiners perceive the obviousness of the claim, then the ordinary practitioner, of higher skill, is even more likely to think the invention obvious. Consequently, the TSM test, as applied by the BPAI, pressures examiners to allow obvious applications because they know they will lose the appeal, so why bother to write an answer. Since Examiners cannot appeal reversals, there is no recourse or path for the Federal Circuit to address this problem. That may be why removal of the TSM test would be a positive for the patent system.Anonymousnoreply@blogger.com