10 Colum. Sci. & Tech. L. Rev. 1 (2009)

handle is hein.journals/cstlr10 and id is 1 raw text is: The Columbia

SCIENCE AND TECHNOLOGY LAW REVIEW
www.stlr.org
THE DEVIL IN THE DETAILS:
A CRITIQUE OF KSR' s UNWARRANTED REINTERPRETATION OF 'PERSON HAVING
ORDINARY SKILL
Andrew B. Dzeguze'
In KSR International Co. v. Teleflex Inc., the Supreme Court took
it upon itself to comment on the supposed knowledge and capacities of a
person having ordinary skill in the art as used in 35 U.S.C.  103. This
phrase is a key component of analyzing whether patents are obvious and
lack sufficient value to justify the award of a patent. The perspective of a
person of ordinary skill in the art is also used in virtually every
meaningful standard in the field of patent law. Despite this significance,
the Court felt no need to engage in any sort of structural or statutory
analysis of the phrase. Instead, the Court at several points suggested that a
person having ordinary skill in the art would have qualities that are not
apparent from the plain language of the statute - such as creativity and
insight beyond their immediate field.
It may be that the Court did not realize that its statements regarding
persons having ordinary skill in the art have significant implications
both for patent cases involving obviousness and several other areas of the
law. Therefore, this article seeks to fill the gaps left by the Court. By way
of background, there is a discussion of the origins and evolution of the
United States patent system and the development of the concept of
obviousness over time. An effort at statutory construction of these
terms is then made. The meanings so derived are then compared with the
Court's statements in KSR to determine how (or if) they are consonant
with precedent. Finally, as KSR is the law of the land, several potential
1 Visiting Assistant Professor, University of Illinois, Springfield. Adjunct Professor, Indiana
University School of Law, Indianapolis. The views expressed are solely those of the author. My
thanks to the numerous colleagues who have listened to my thoughts and read drafts of this paper,
particularly David Quick of Ice Miller LLP in Indianapolis.
Available at http:// wwrw.stir.orgcite.cgi?volume=1O&article= I

This work is made available under the
Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?