Hefner, a professor at the University of Missouri-Columbia School of Public Health and one of the nation's leading leaders in the field of patent analysis, says that patent analysis is an inexact science and that companies and individual patents are difficult to assess. In addition, most chemical compounds were discovered and tested at lower concentrations than KSR claims, which were tested at 4,000 parts per million or more of a single compound. Hefner adds that it is not clear what kind of evidence a court would need to assess whether a patent was obvious. As I wrote in my report on the patent case, “The issue of how to apply the 'discovery-by-proximity' doctrine and how to use the 'actual-principle of obviousness' to predict future success is inherently contentious.” Yet, as the Court of Appeals so aptly illustrated in KSR v. Telefax, one must judge whether that discovery was “sufficient to establish that a chemical compound had a clear priority claim to avoid infringement.” That means that, by definition, KSR has established that several other, non-obvious compounds in a particular class were patentable. If this standard has limited application, then I have no problems with the Court of Appeals recognizing the patent because other (as-yet-undiscovered) compounds in the same class could also qualify. The patent, if granted, will also likely be valid if it is claimed by other patent holders (a fact which KSR has acknowledged). The decision by the Court of Appeals for the Federal Circuit was based on the idea that KSR has established that several “obvious” chemicals that do not yet exist have an undoubted priority to existing chemical compounds (by definition, this means that they have been discovered, tested, and described at lower concentrations than KSR claimed). As I noted in my report, “obviously is a highly subjective analysis, and there is no universally accepted or settled criterion for assessing whether a patent is obvious or whether other compounds in a class that have so far not been identified or described are also patentable.” In this case, the Court of Appeals accepted what has been generally accepted for thousands of years as the basic tenets of patent law: the “discovery by proximity” doctrine and the “actual-principle of obviousness.
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Effect of KSR on Obviousness Analysis of Chemical Compounds by Pauline farmer-koppenol, m.s. excerpted from the summer 2008 IP bulletin Since KSR International Co. v. Telefax Inc., 127 S. Ct. 1727
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