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Copyright (c) 2011 Patent and Trademark Office Society, All Rights Reserved
Journal of the Patent and Trademark Office Society

ARTICLE: Nonobviousness Standards for Hardware and Software Before and After KSR: What is the Difference?

November 2011

93 J. Pat. & Trademark Off. Soc'y 259

Author

Michelle Friedman Murray

Excerpt

I. Introduction
 
Conventional wisdom holds that the bar for proving nonobviousness for software patents is higher than the bar for proving nonobviousness in other technology areas. 1 Since the Supreme Court decided KSR International Co. v. Teleflex Inc. 2 in 2007, there has been a significant increase in the bar for proving nonobviousness, especially in predictable arts such as electronics and software. 3 As two of the more controversial technology areas, the patentability of software has often been compared to the patentability of biotechnology. 4 The differences in patentability standards between software and biotechnology have been explained because of a difference in the PHOSITA standard in different technology areas. 5 Little attention has been paid to the nonobviousness of hardware. 6 There has not been much analysis comparing the nonobviousness standards of hardware (electronics) and software. 7 James Quigley performed an empirical study on the rate that the Federal Circuit affirmed district court nonobviousness findings in the technology area of electronics and the combined technology areas of electronics and software before and after KSR. 8 Quigley found a bigger increase in the rate that the Federal Circuit overruled the district court's finding of nonobvious in the combined technology area of electronics and software than in the combination of all other technology areas. 9

This paper compares the nonobviousness standard for software patents to that of hardware patents, both before and after KSR. This paper closely examines a small number of opinions ...
 
 
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