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PETITION OF CERT TO SUPREME COURT ON ISSUE OF OBVIOUSNESS

by | Aug 21, 2009 | Patent | 0 comments

In Medela AG v. Kinetic Concepts, Inc., a writ of certiorari petitioning the Supreme Court was filed last week, seeking to supplant juries in deciding the issue of obviousness in patent cases in favor of judges.  The petition, filed by Medela, posed the following question to the Supreme Court:

“[w]hether a person accused of patent infringement has a right to independent judicial, as distinct from lay jury, determination of whether an asserted patent claim satisfies the “non-obvious subject matter” condition for patentability.”

Medela appeals a ruling from the Federal Circuit which they argue conflicts with other circuits.  In support, Medela relies on the recent and seminal case KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) for the proposition that obviousness is a legal determination, and urge that therefore it is an issue which should be decided by judges rather than juries.  A copy of the writ of certiorari can be found here.

The Supreme Court has yet to decide whether to grant the petition.