Microsoft, Cisco file friends-of-the-court brief

Who would have thought that a fight over a patent on an adjustable gas pedal could result in a shake-up to the entire software industry? But such is the case -- pardon the pun -- as the Supreme Court readies to hear oral arguments in KSR International v Teleflex on Nov. 28.

The litigation in question is between two automotive suppliers. In 2002 Teleflex sued KSR for patent infringement of its adjustable gas pedal, which combined electronically controlled pedal positions with the adjustable assembly.

In response, KSR filed a "writ of certiorari" saying Teleflex had no right to the patent as it "comprises nothing more than a pre-existing adjustable pedal assembly combined with a pre-existing electronic control." And if you doubt the importance of what appears to be simply an automotive case, ask yourself why Microsoft and Cisco have filed amicus curiae (friends of the court) briefs on behalf of KSR. It is not what you think.

But first, understanding something about how patents are awarded is in order, so bear with me. I enlisted the help of two patent attorneys, John Dauer from Pitney Hardin and Steve Saunders from Bromberg & Sunstein.

Normally you can receive a patent if you meet one of two criteria. One if it is novel, the world's first of something. In the second criteria, an invention -- and that includes software code and business methods -- must answer the question: Would it have been obvious to someone of ordinary skill in this area to combine the relevant "art" and come up with this device? This is called the Obviousness Doctrine and much of patent law rests on its interpretation by patent examiners and the courts.

The Supreme Court must decide whether or not it would have been obvious to take these two technologies and come up with Teleflex's invention. Or, instead, is it a synergy that one wouldn't have expected?