Making eligibility more difficult weakens IPR protection
Mandel ’18 [Gregory N.; January; Dean & Peter J. Liacouras Professor of Law, Temple University; Minnesota Law Review, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” 102:803]
The Supreme Court made it more difficult to acquire and enforce patents in other ways as well. In two of the most significant patent decisions during the period of study,33 the Court raised the creativity threshold for acquiring a patent and weakened remedies for patent infringement. The central requirement for obtaining a patent is that an invention be nonobvious.34 A patent applicant must demonstrate that the invention would not have been obvious to a person having ordinary skill in the art at the time the patent application was filed.35 In KSR Int’l Co. v. Teleflex, Inc., the Court made it harder to establish nonobviousness by expanding the scope of subject matter that is considered obvious in light of existing technology.36 Subsequent to KSR, both the courts and the Patent and Trademark Office (PTO) have been more likely to deny patent protection for an invention by holding that it is obvious.37