Edward D. Manzo


In KSR International Co. v. Teleflex Inc., the Supreme Court adhered to its prior views that a constitutional standard applied in determining whether an invention is “obvious.” Further, the Federal Circuit’s teaching-suggestion-motivation (“TSM”) test, which stipulated that an invention is not obvious unless some teaching, suggestion, or motivation to combine the elements of the invention exists, cannot replace or limit the constitutional standard. KSR eliminated the Federal Circuit’s requirement, holding that the TSM test is only one way to find an invention obvious and that a common sense approach should be used. KSR also noted that all persons skilled in an art have ordinary inventiveness, and more than ordinary inventiveness is needed to support a patent.