The SG’s amicus brief on the merits in KSR is hard hitting, and a great read.

It makes a point about the PHOSITA’s inventiveness that’s close to the point KSR makes in its own brief (and that I’ve argued is a crucial point in creating a sensible, stable nonobviousness standard).

Here it is:

This Court’s decisions make clear that the nonobviousness inquiry ultimately depends heavily on an assessment of the expected capabilities, insights, and ingenuity of the hypothetical person “having ordinary skill in the art to which said subject matter pertains.”  35 USC 103(a).  …  The Federal Circuit’s test–which focuses attention exclusively on a search for teachings, suggestions, and motivations in the prior art–has misdirected the analysis away from that central inquiry.  The Federal Circuit’s test effectively assumes that the person of ordinary skill has little capability to combine prior art in the absence of specific teachings or suggestions.  The Federal Circuit’s systemic diminishment of the role of the person of ordinary skill and its miserly assessment of that person’s capabilities has distorted the Graham framework. The Court should reiterate that the role of the hypothetical person of ordinary skill is critical in the nonobviousness inquiry and that the person is understood to have “an ability to combine and modify prior art references that is consistent with the creativity and problem-solving skills that in fact are characteristic of those having ordinary skill in the art.”  FTC Report, ch. 4, at 15.

SG’s Amicus Brief on the Merits at 25.

In a word, Wow!  Great stuff ….