I think you’re coming around to the view I’ve expressed on this and other boards. The current crisis in patent law is not based solely in the PTO (yes, the PTO has problems, but that’s another post) but in the underlying substantive law of KSR and to a lesser extent Bilsky.

I have been practicing for almost 20 years now and in my entire practice I have never seen an invention that could be considered non-obvious under a strict application of KSR. In fact, I’m unaware of any inventions in history which would be considered non-obvious under a strict application of KSR. Stated otherwise, nothing is patentable under KSR.

The reality is that science and technology advance in incremental steps which are built upon the foundation laid by others working in the same art areas. In fact, the entire purpose of the patent system is to encourage inventors to disclose their advances to the public so they become a part of the foundation upon which further development can build.

The KSR decision is hopelessly at odds with this reality. As you indicated, under KSR any advance in the art that is not completely contrary to the expectations of one skilled in the art is now per se obvious. The patent office may well let KSR slip, primarily out of a bureaucratic instinct for self-preservation, but there’s no indication that the courts will. The Federal Circuit now appears to be an anti-patent court, and the SC isn’t going to revisit this issue anytime soon. The courts will be no help.

Absent Congressional intervention to undo the damage done by KSR the US patent system is going to implode, slowly but surely. It’s no coincidence that maintenance fee renewals have tanked right after KSR, thereby robbing the PTO of its major source of funding. Next the number of filings will tank, further depriving the PTO of revenue. Mass cutbacks and layoffs at the PTO are all but inevitable already.

We’re at the front end of an unfolding crisis. Congress can forestall this crisis by amending 103 to restore the TSM test or a similarly objective test for obviousness. Five years from now it will be too late.

I am afraid you are correct, and we may be entering into another dark age for patents. Those patents that get issued and are lucrative enough to litigate will be in jeopardy until the Federal Circuit can undo KSR or Congress steps in. Since Congress is slow to act even in the face of a patent system that is falling apart, it will likely take another few years before the Federal Circuit can successfully retreat from much of the craziness that is KSR.

-Gene