Advocates of educational technology are applauding a U.S. Supreme Court ruling earlier this week that gives companies new protections against patent lawsuits.
The High Court’s decision, which makes it easier to challenge patents on the grounds they cover products that are obvious combinations of existing technologies, could affect several ongoing patent disputes with ties to education.
“The court’s decision makes it easier to challenge a patent on the basis of obviousness,'” said Steven L. Worona, director of policy and networking programs for the higher-ed technology group EDUCAUSE. “This is a major step forward in the struggle against patents that many in the higher-education community feel should not have been granted.”
To merit a patent under U.S. law, an invention must be new, useful, and not obvious. The court’s April 30 ruling threw out a lawsuit by Limerick, Pa.-based Teleflex Inc. that accused Canadian firm KSR International Inc. of using a patented invention for adjustable gas pedals.
Microsoft and many other high-tech companies, including Cisco Systems Inc. and Intel Corp., had filed “friend of the court” briefs in the KSR case, urging the court to ease the standard for demonstrating that a new product is obvious. The court largely decided as the companies had urged.
The companies wanted a more flexible “obviousness” standard that would make it easier for patent examiners to reject applications for trivial innovations or obvious combinations of existing products. Spurious patents have contributed to the recent increase in patent litigation, they argued.
The justices unanimously said the federal appeals court that handles patent cases had given too much power to developers of minor technological improvements.
“Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress,” Justice Anthony Kennedy wrote for the court.
David Kappos, assistant general counsel at IBM, said the court’s decision means that, “if you want a patent, you actually have to invent something.”
The Supreme Court’s recent interest in patent law—it has taken up a half-dozen such cases in the past two years, an unusually large number—reflects the greater role that patents play in the U.S. economy, as companies earn more revenue from licensing patents. Overall patent litigation has increased by 50 percent in the last 10 years.
Many critics of the U.S. patent system contend that too many patents are issued for overly broad, or obvious, technological innovations—thus leading to lawsuits as other companies build or improve on those earlier developments. (See ‘Submarine patents’ menace innovation: http://www.eschoolnews.com/news/showStory.cfm?rticleID=5914Submarine.)
In one recent example with a direct link to education, learning management systems provider Blackboard Inc. was given a patent for online course management software that critics say gives the company ownership over the idea of eLearning software itself. Blackboard has since sued rival Desire2Learn for patent infringement, and the U.S. Patent and Trademark Office has said it will re-examine its decision to grant the patent. (See Colleges”>Colleges eye LMS patent fight: http://www.eschoolnews.com/news/showStory.cfm?ArticleID=6534)
In another example, a firm called Acacia Research Corp. claims it holds a patent covering the technique for streaming audio and video over the internet, and it has demanded royalty payments from schools and companies using internet streaming services. (See Schools”>Schools offered new video royalty deal: http://www.eschoolnews.com/news/showStoryts.cfm?ArticleID=5915) That patent was still under legal review as of press time.
Though the Supreme Court’s ruling has no direct bearing on these cases, it could have far-reaching implications that affect how these other situations play out.
“In recent years, we have been confronted by overly broad patent claims in the areas of online testing, streaming media, network security, and course management systems,” said Worona of EDUCAUSE. “Higher education places a very high value on true innovation, a value that is demeaned by an overly permissive patent process. “The court now demands that the patent system recognize that ‘ordinary skill and common sense’ is not the same thing as innovation. We applaud the court for this important—and now obvious—conclusion.”
Not everyone was happy with the High Court’s ruling. Some analysts fear it will weaken the value of patents and actually hinder technological innovation, particularly in the biotech and pharmaceutical sectors.
Boston University Law Professor Dennis Crouch wrote on a popular Supreme Court blog, Scotusblog, that “because of KSR, patents will be more difficult to enforce and easier to invalidate.”
The biotech and pharmaceutical industries were on the losing end of the KSR case. Groups from both industries filed “friend of the court” briefs in support of the obviousness test that the court ruled was applied too narrowly.
Hans Sauer, associate general counsel at the Biotech Industry Organization, which represents companies such as Amgen Inc. and Gilead Sciences Inc., said a weaker patent regime can make it harder for new biotech companies to attract venture capital or other investment. That investment can be crucial when a small firm is seeking millions of dollars to bring a new drug to market, he said.
Supreme Court of the United States