Today’s two patent decisions came-out as expected — both cases make patents less valuable. Because of KSR, patents will be more difficult to enforce and easier to invalidate. The AT&T case cuts in-half the value of many of today’s most valuable software patents.
I had expected that the KSR decision would operate something like a sledge-hammer and entirely shift the focus of obviousness analysis. Instead, the opinion appears to simply refine the particulars of how prior-art can be combined and when a “combination patent” will be seen as obvious. Inventions that introduce the world to entirely new concepts and elements will continue to be more valuable. Of course, those types of inventions are often more difficult to achieve than ones that simply recombine a set of well-known parts.
There is some hope that the KSR decision will eventually result in a restoration of respect and pride in the US patent system — concepts that have been missing for a number of years. This decision may result in fewer patents issued by the USPTO — If the stars align, that new generation of heartier patents just might help lead us to a new level of innovation.
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