Scalia’s Hint on KSR

ScaliaAs you read this, keep in mind Michael Slonecker’s recent remark that “predictions are the musings of fools.” In late November, the Supreme Court heard oral arguments in KSR v. Teleflex — the case that will determine what constitutes a “nonobvious” invention. Then, last week, Justice Scalia briefly discussed the case at a meeting of technology business group and was quoted as saying: “I know how that one comes out, but I'm not going to tell you.”  What does Scalia’s quote mean? Perhaps nothing, but it might mean that the court has already come to a unanimous consensus on the case.

Link: Washington Post Article

15 thoughts on “Scalia’s Hint on KSR

  1. By Stander wrote, “Maybe next time patent bar should sent someone more competent. It didn’t help a profession’s image when you’re standing in front the justices and you couldn’t explain what M in TSM meant.”

    I don’t believe incompetence was the problem.

    The petitioner wants the TSM rule to be thrown out — so they had no motivation (ahem) to argue that it was clear and to explain it. Similarly, the respondent would probably lose under the TSM rule as recently applied by the Federal Circuit — so they had no motivation to explain it either.

    Like By Stander, I believe this reflects poorly on our profession’s image, not because of incompetence, but because the attorneys would rather leverage the justices’ confusion than to clearly explain the law and attempt to win on the merits.

  2. The case was poorly argued. It seems Scalia and other Justices lost patience because the attorneys for both side had poor grasp of the law. Hence the “Gobbledygook” remark.

    Maybe the writ should be dismissed. Maybe next time patent bar should sent someone more competent. It didn’t help a profession’s image when you’re standing in front the justices and you couldn’t explain what M in TSM meant.

  3. I think the Unitary Executive proponents will carry the day. Instead of TSM, just send the application to our fearless leader and ask if he thinks it’s obvious. I’m kidding of course, but I fear a new test could be roughly as (im)precise.

  4. I agree with Dennis’ comment of a few days ago. A Court will either dismiss the writ as improvidently granted or remand for further findings. Remember, that’s what the Court of Appeals did. They sent it back to the trial judge for further findings, so that they would have a basis to review the trial judge’s order. Because that was the procedural posture, the case may have been a poor candidate for the Court to take in the first place.

    Conservatives have criticized the Court for taking cases with similar procedural postures in the past.

    Let’s see if the Roberts’ Court is genuinely conservative.

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  7. I don’t think it will be an all-out punt or procedural dodge, but I wouldn’t be surprised if they allow the CAFC to have a hand in defining the new test. A remand saying something along the lines of “old TSM is rejected, come up with something new that comports with Graham.” Then the CAFC just gets their Dystar stamp out, cert gets denied, and problem solved.

    In this case, I think the concurrences (of which I’m certain there will be at least 1) will try to guide the final CAFC test to one hypothetical result or another.

  8. Assuming, for a moment, the Court holds that meeting the TSM test is not requirement to establish obviousness. Does the Court rest solely on Graham? or does the Court interject some new standard into the mix? If so, how much leeway does SCOTUS give the Federal Circuit in fleshing out the new standard?

    Alternatively, is it possible that the Court punts and remands based upon some procedural issue? I, for one, wouldn’t be surprised if the Supreme Court punts.

  9. Justice Scalia has a few too many one off comments to put alot of stock in any single one of them. That said, the court hasn’t heard many cases this term so we can hope for something sooner instead of later.

  10. NVTC sounds like a conservative organization, one that would lean more towards free market. Having said that, I don’t believe Scalia or anyone would go to an invited function and make an unsolicited remark that would not be favorable to the audience. Thus, I would guess that the unanimous decision should be a reversal.

  11. All I would take away is that at least 5 Justices have agreed on whether to reverse or affirm, a majority opinion has likely been assigned, and there is probably not a vote “in play” at this point.

    That isn’t very helpful because it’s still impossible to predict when an opinion will come out. There could be a 9-0 opinion ready to go now, there could be a majority opinion done now, which will be delayed by concurrences and dissents, or it could be that the writer has the views of the other justices but hasn’t started writing the opinion yet.

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