The Supreme Court decision to abandon the strict test and rely on common sense judgment when deciding cases on patent infringements has made several industries and professionals unhappy. The impact of this decision, however, could only be as binding as the Federal Circuit decides it to be.
Steve Szczepanski, a partner in Foley’s Chicago office, was quoted in the July 2007 issue of Chicago Lawyer as saying that on one hand this decision could undermine the patent system because of its vagueness, but on the other hand the Federal Circuit will not be affected by this decision because they are still free to apply liberal strict scrutiny. In the article titled “Supreme Court Decision Could Impact Future Patent Law,” Szczepanski added that one certain outcome is that there will be more lengthy, costly and unpredictable litigation, but it remains to be seen whether Congress will outline the obviousness test.
Andrea Augustine, senior counsel in Foley’s Chicago office, was also quoted in the same article assaying that the Supreme Court is showing the Federal Circuit how to use common sense in such patent cases and with some more guidance from the Supreme Court the number of appeals to the Federal Circuit can be reduced.