This a great argument from TPL and is, in itself, indisputeable.

I am not selling. Too late anyway. I have a lot to loose, but much

more to gain, but my gonads do hurt. Does anyone have some

pain pills so I can get thru this, please!!!!

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"Petitioner’s “evidence” that the “teaching, suggestion,

motivation” test (also referred to as the “suggestion” test or the

“motivation-to-combine” test) is too exacting, leading to the

issuance of trivial patents, boils down to little more than its

ipse dixit that the patent asserted in this case is obviously

3

obvious. This argument in itself highlights the need for objective

standards. (How is a court otherwise to adjudicate this claim?)

Petitioner’s further support for an ailing system is that the

obviousness test precludes the judicial determination that a

patent is obvious as a matter of law. But the Federal Circuit has

upheld (or reversed for entry of) some half-dozen judicial

determinations of obviousness in the past six months alone. In

sum, by petitioner’s standards, the patent system is functioning

very well.

Neither is there anything to suggest that the obviousness

test is either retarding commerce or thwarting invention. Indeed,

petitioner and its amici who radically advocate destruction of

the motivation-to-combine test in an attempt to weaken the

patent system in the name of competition have either short

memories or ulterior motives. Congress created the Federal

Circuit specifically to treat the depressed climate for innovation

pervading the late 1970’s, when the patent system had become

ineffective, and the subjective ease with which a patent could

be invalidated strongly favored companies that copied over those

willing to invest the time, talent, energy and money to innovate.

American companies that had innovated had fallen prey to lowerpriced

foreign competition, and were faced with the prospect

of going out of business.2"