Obviousness is a killer weapon for a defense lawyer in a patent infringement case. If he or she can prove that the patent in question is “obvious,” (that is, not inventive and not worthy of a patent), the case can be tossed once and for all.
But should juries be weighing in on whether a patent is obvious? An amicus brief in a case with Supreme Court aspirations makes the argument that judges should be the one deciding the issue, not the jury.
This is interesting because there has long been a debate about how much deciding power juries should have in patent cases, which are by their nature technical and complex. Already, judges decide on their own how interpret a patent’s key terms in the claim construction phase of patent trials.
Come, wonk with us … after the jump.
The case is Medela AG v. Kinetic Concepts, Inc., and as Patently-O points out, the question is: “Whether 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.”
The amicus brief (.pdf) was filed today by a Valley who’s who of tech companies: Apple, Cisco, Google, Symantec and Yahoo (and Microsoft, too), and written by Ed Reines at Weil Gotshal.
“Because of the character of the patent right and to address the awkward split of responsibility between the court and the jury that currently plays out in district courts every day, judges should be expressly and unambiguously given the authority to fulfill their responsibility to address the legal question of obviousness,” the tech companies argue.
Will the Supremes take up the case? And should juries be put out of the business of figuring out whether a patent is obvious? Let us know what you think.
— Zusha Elinson