HOWZAT

The most significant question as a result of the Supreme Court decision, said Goldstein, is what will replace the long-standing test.

In 2002, patent-holder Teleflex sued competitor KSR in federal court, alleging infringement.

KSR's gas pedals supplied to General Motors can be adjusted for a driver's height and when pushed, the pedals send an electronic signal to accelerate. Teleflex alleges KSR infringed by combining the adjustable gas pedal and the electronically actuated fuel system in a way that Teleflex had patented. KSR said the Teleflex approach to adjustable gas pedal technology was obvious and that the patent should be invalidated.

A federal judge threw out the lawsuit that Teleflex filed, but the appeals court reinstated it. The Supreme Court reversed the appeals court and sent the case back to US District Court in Detroit.

The Teleflex patent was based on putting the electronic sensor on the vehicle structure of Ford Motor Co. pickup trucks, rather than on the adjustable pedal control as had been done in the past.

At arguments in November, Justice Stephen Breyer crystallised the debate.

Is the Teleflex invention like moving a garage door sensor from the lower hinge to an upper hinge?” he asked.

Many large companies in the software and computer industry have opposed the appeals court test while much of the biotechnology industry favours it.

Big pharmaceutical companies are concerned about being copied and not being able to charge premium prices to recoup their research and development expenses.

It costs about $800 million and can take a decade or more to bring a new drug to market, the pharmaceutical industry says.

In contrast is the position of major software companies. A single laptop computer can be based on 200 patents. The major companies prefer not to have to pay royalties to small innovative companies on patents which the large companies use in their products.

The Supreme Court ruling is an opportunity to "weed out" unworthy patent applications and move toward re-establishing patent quality, Emery Simon, an adviser to the Business Software Alliance, said.

A Federal Trade Commission report in 2003 urged Congress to make it easier to challenge patents at the U.S. Patent and Trademark Office and to allow courts to find patents invalid based on a preponderance of the evidence rather than clear and convincing evidence.

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