This time, they are the briefs for, and supporting, the Respondent Teleflex.  SCOTUSblog collects them, and you can get to the page here.

A reader has asked what Boolean search query I use to keep a running tab on i.p. injunction cases that apply the eBay formulation, for my resource page on injunction cases.

It is this: ebay and (injunction or enjoin) and (patent or copyright or trademark) and date(after 5/15/2006)

A point on my procedure for maintaining the resource page … I’ve set up Westlaw to run the foregoing search for me automatically each day and e-mail me the result.  When the e-mail notice points me to a new case, I read the case to determine if it truly belongs on the resource page and update the page (or not) accordingly.  Even if the “last updated” date on the resource page is a week or two old, that simply means that there hasn’t been another pertinent reported case since that time.

In any event … happy hunting!

Another law review offers a web-based adjunct … this time, at my alma mater, Northwestern University. The Nw. U. L. Rev. goes live with Colloquy on November 1, 2006.  At the moment, their pre-live page describes the plan.

As you may have noted, regular reader, postings have slowed dramatically here at TFOG these last few weeks.  It reflects the life of a law professor, or lawyer … I’ve simply been tapped out by my other, more pressing, obligations.

But fear not … I hope that, soon, I’ll be back up with more frequent commentary on patent law and other i.p. law happenings.  In the meantime, please visit the i.p. blogs in my blogroll.  They’re great!

Professors Wagner and Strandburg mix it up at Pennumbra, the Penn Law Review web presence.  Specifically, they debate the merits of the teaching-motivation-suggestion test currently before the Supreme Court in KSR.

I agree with Patently-O and Patent Prospector - Dystar Textilfarben v. CH Patrick, No. 06-1088 (Fed. Cir. Oct. 3, 2006), is a highly noteworthy nonobviousness case. It brings to four the number of Federal Circuit cases this year that attempt to rehabilitate the Federal Circuit’s “suggestion test” in advance of the Supreme Court’s oral argument and decision in KSR v. Teleflex. Three have issued since the Supreme Court granted review in KSR on June 26. These post-KSR Federal Circuit decisions, in fact, issued on or after Aug. 30, i.e., at the rate of about one every other week. I covered the other three a few weeks ago, and Dystar is even more forward-leaning in its criticism of those who criticize the suggestion test. In all four cases, the Federal Circuit strikes down the claims at issue as invalid for obviousness. In two, the lower tribunal’s obviousness holding is upheld; in the other two, the lower tribunal’s nonobviousness holding is reversed.

A few initial thoughts …

• The court’s concern that commentators are mistaken in urging that the suggestion test is overly rigid sounds a bit like the marching band member who wonders, “Why is everyone else in this parade but me walking out of step?” It may, of course, be that everyone else is out of step. It may also be, however, that the suggestion test has, until very recently (after the KSR v. Teleflex decision), been applied in an exceptionally rigid way (with the occasional, and frankly incoherent, escape hatch for so-called “implicit suggestion” cases).
• The Federal Circuit, if it saves the suggestion test, will do so by destroying it … by so fundamentally changing it that, although its name remains the same, it is a different framework. This is most clear from Dystar’s emphasis on partially relocating the suggestion test from an elaboration of the “scope and content of the prior art” Graham factor to an elaboration of the “level of ordinary skill in the art” Graham factor. Indeed, at present, the most remarkable … and the most remarkably new … passage in the Dystar opinion is the paragraph that makes this very point. Here it is, in its entirety: “Although this court customarily discusses a motivation to combine as part of the first Graham factor, the scope and content of the prior art, see SIBIA Neurosciences, 225 F.3d at 1356, motivation to combine is also inextricably linked to the level of ordinary skill. If, as is usually the case, no prior art reference contains an express suggestion to combine references, then the level of ordinary skill will often predetermine whether an implicit suggestion exists. Persons of varying degrees of skill not only possess varying bases of knowledge, they also possess varying levels of imagination and ingenuity in the relevant field, particularly with respect to problem-solving abilities. If the level of skill is low, for example that of a mere dyer, as DyStar has suggested, then it may be rational to assume that such an artisan would not think to combine references absent explicit direction in a prior art reference. If, however, as we have held as a matter of law, the level of skill is that of a dyeing process designer, then one can assume comfortably that such an artisan will draw ideas from chemistry and systems engineering–without being told to do so.”

Dystar merits the closest study and reflection. I think I will have a number of posts on the case here over the next few days. That is why I’m calling this post “Part 1.”

SCOTUSblog has a great summary of the facts and issues, just in time for tomorrow’s argument.

The Supreme Court begins hearing arguments tomorrow, in October Term 2006. Up Wednesday is MedImmune v. Genentech, which Dennis Crouch of Patently-O has summarized. The basic question in the case: As a jurisdictional matter, must a patent licensee refuse to pay royalties and commit material breach of the license agreement before suing to declare the patent invalid, unenforceable or not infringed? And, consistent with the Court’s new policy of providing same-day oral argument transcripts on the web, we’ll all get a look at the Justices questions within hours of the argument.

The Supreme Court will argument in KSR v. Teleflex, the case about nonobviousness, on Tuesday, November 28. The calendar for the argument group starting November 27 has just been released. [ Hat tip to SCOTUSblog. ]