Over on the IP Watchdog blog they are celebrating – or not – the fifth anniversary of the handing down of the KSR v Teleflex decision by the US Supreme Court. It’s one that I remember well, not just because the judgment itself was so eagerly anticipated, but because I had actually sat in on the court and listened to the oral arguments.

A day later I put together what remains the most read piece in the history of the IAM blog. It was all about the way in which it seemed to me the justices struggled with the points the case focused on. I realise now that some of that was for show, but I still vividly recall listening to the arguments in the anti-trust case proceeding KSR (the court heard two, one after the other) and being impressed by what seemed to be incisive, focused, detailed questioning from judges who were clearly on top of the subject matter. Then when the patent stuff started, it all changed. This is what I said:

There has been plenty of follow up to the KSR v Teleflex oral argument in the Supreme Court on Tuesday … Much of it has focused on the apparent scepticism several of the justices expressed about the teaching, suggestion and motivation test for non-obviousness, as well as their concerns that there could be judicial chaos if the test were substantially reworked or even replaced. However, I have not seen any commentators talk about what I felt was a very real lack of deep understanding of the issue at hand. I felt there was some confusion about patent terms and about what made something “obvious” or not. Maybe I got it wrong, but I am pretty sure I haven’t.

And that has got me thinking. If some of the finest judicial minds in the US and probably anywhere in the world find it difficult to get to the bottom of patent law and practice, should we be blaming them or the law itself? Obviously patent law is always going to be very technical, but surely its main tenets – such as obviousness – have to be accessible to more than those who specialise in patent law. When you see Supreme Court justices struggling, hasn’t something gone very wrong? If they don’t get it, what hope for anyone else that has not spent years and years studying the subject? What hope for inventors, company executives, the general public, politicians and just about anyone else outside the rarefied world of the patent law?

It seems to me that we do have a problem. Patents are too important for them to be the preserve only of the specialists. They have to be broadly understandable to a much wider constituency or at some stage things could start going very badly awry. People generally mistrust what they do not understand. Now, I don’t know what the answer is, but it strikes me that it is pretty important we start looking for it.

My guess is that what I thought applied then probably still largely applies today. If that is the case, it is not good news at all, except for the lawyers and attorneys who are called on to explain what it all means when things go wrong.

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IP litigation, Patents, IP business