The Computer & Communications Industry Association’s amicus brief in support of KSR is short and sweet. Like KSR’s brief, the SG’s brief, and my own musings on the topic, the CCIA urges the Court to take a more favorable view of the PHOSITA’s ordinary inventive and creative skills.

The CCIA argues as follows:

The suggestion test also marginalizes the “person having ordinary skill in the art” in contravention of Graham and Section 103. The Federal Circuit has belittled the hypothetical PHOSITA as a mere journeyman, “one who thinks along the line of conventional wisdom in the art and is not one who undertakes to innovate, whether by patient, and often expensive, systematic research or by extraordinary insights, it makes no difference which.”  Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 454 (Fed. Cir. 1985).  The suggestion test goes further, implying that people having ordinary skill in information technology industries, for example, do not have the insight or skill to combine two references unless specifically instructed to do so.  In today’s intensely competitive economy, this makes no sense.  The operating level of competition and innovation is defined not by mediocrity as the Federal Circuit assumes but by the talents of hundreds of thousands of creative engineers worldwide.  See FTC Report, ch. 4 n. 70.  This is especially true for information technology, where convergence and integration are taken for granted.  The Federal Trade Commission (FTC) accordingly recommends that the suggestion test be modified to reflect the “creativity and problem-solving skills that in fact are characteristic of those having ordinary skill in the art.”  FTC Report, Exec. Summ. at 11-12 (Recommendation 3b).

CCIA Amicus Brief on the Merits at 9-10.  For my money, the Standard Oil case that the CCIA criticizes here is a misstep in the nonobviousness jurisprudence from which no end of trouble has flown.  As the saying goes, even Homer nods.