Justice Kennedy’s opinion for the unanimous Court in KSR v. Teleflex is, I think, quite excellent. Like his opinion for the unanimous Court in Festo v. SMC (2002), Justice Kennedy’s KSR opinion makes great strides by getting back to basics, by returning to first principles.

One of the Court’s big innovations in the case is its clear embrace of the principle that ordinary artisans are creative, inventive people. Kathy Strandburg’s amicus brief for lawprofs in support of KSR stressed this principle, as did the SG’s brief in support of KSR (as, for that matter, did the FTC Report (ch. 4, p. 15)).

From the slip opinion …

p. 14 – “[T]he analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”

p. 17 – “A person of ordinary skill is also a person of ordinary creativity, not an automaton.”

Almost a year ago, I expressed the hope that nonobviousness law would focus more on the inventive, creative capacity of the ordinary artisan. [ I also posted a few times on the question in August 2006, here, here, and here. ] I’m pleased to see the Court set us on the path of exploring, more deeply than we have to date, the ordinary artisan’s creativity.