PK and EFF Brief in K/S HIMPP v. Hear-Wear Technologies

No. 14-744
In the

Supreme Court of the United States

K/S HIMPP, Petitioner,
v.
HEAR-WEAR TECHNOLOGIES, LLC, Respondent.

On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Federal Circuit

BRIEF OF AMICI CURIAE PUBLIC KNOWLEDGE
AND THE ELECTRONIC FRONTIER FOUNDATION
IN SUPPORT OF PETITIONER

SUMMARY OF ARGUMENT

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. . . . And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.

So wrote Justice Kennedy in KSR International Co. v. Teleflex Inc., in holding that the obviousness inquiry under 35 U.S.C. § 103 must consider the common sense of a person of ordinary skill in the art. 550 U.S. 398, 427 (2007) (emphasis added). This principle of the centrality of common sense to the “expansive and flexible approach” of obviousness, id. at 1739, stands as a bedrock of patent jurisprudence.

Yet the Court of Appeals for the Federal Circuit held that this principle could be ignored, and common sense could be dismissed, in aspects of obviousness different from the particular factual setting of KSR itself. Limiting this Court’s ruling to situations “related to the combinability of references,” the Federal Circuit held that common sense was not to be applied with regard to “a specific claim limitation.” K/S HIMPP v. Hear-Wear Techs., LLC, 751 F.3d 1362, 1366 (Fed. Cir. 2014) (Pet. Br. app. 9a).

The irreconcilability between the Federal Circuit’s holding and KSR and its progeny have been explained in detail in the petition for certiorari and by Judge Dyk in dissent. See Hear-Wear, 751 F.3d at 1370 (App. 19a) (“The majority’s approach here is inconsistent with KSR itself and also with our post-KSR approach.”). However, this Court should be aware not only of this unresolved conflict of precedent but also of the magnitude of the problems for federal policy and the public that the Federal Circuit has created with this legal error.

Hear-Wear has at least three negative consequences of significance to the patent system:

  • First, the Federal Circuit’s rule requiring documentary evidence of every patent claim element has the paradoxical implication that the most obvious patent claims are the most difficult to prove invalid, because the more obvious an idea is, the less likely that it will be documented in a publication.
  • Second, this documentary evidence requirement exacerbates the already-growing problem of patent litigation abuse, by greatly raising the costs of proving obviousness in court and by incentivizing patent applicants to flood patents with numerous insignificant claims.
  • Third, the Federal Circuit’s refusal to consider common sense upsets the constitutional balance of the patent system, by conferring the substantial reward of the patent monopoly on ordinary ideas not worthy of that reward.

These problems, in conjunction with the conflict between Hear-Wear and KSR, give rise to an important federal question that merits this Court’s grant of certiorari.

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