Non-Obviousness of Biotech Inventions in the Light of KSR Case
Manupatra Intellectual Property Reports, Vol. 1, No. 2, p. A-21, 2008
18 Pages Posted: 26 Jan 2012
Date Written: February 25, 2008
Determination of non-obviousness is very complicated because of ambiguities inherent in the steps for making the assessment. The TSM test for ascertaining the mode of combination of prior art for assessing non-obviousness makes the determination objective and certain to some extent. However, the US Supreme Court in the KSR case expanded the test for combining prior art for assessing non-obviousness beyond the TSM test, thus broadening the test for non-obviousness and increasing the ambiguity in its determination. The decision in the case has a huge impact on non obviousness determination for inventions in the field of biotechnology due to ambiguities inherent in the field. This article traces the evolution of non-obviousness jurisprudence, elaborates the application of the TSM test, explains the decision in the KSR case and analyzes the impact of the KSR case on biotechnology inventions.
Keywords: Non-obviousness, Teaching Suggestion or Motivation Test, TSM Test, Biotechnology Inventions, KSR v. Teleflex
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