The US Constitution as an Interpretive Tool for Obviousness Law

by Dennis Crouch

LKQ’s brief for today’s en banc rehearing begins with the following interesting statement: “As with utility patents, the U.S. Cons،ution and the Patent Act prohibit design patents on ordinary innovations.” It is the Cons،utional question that is most interesting and calls forth the concurring opinion by Justice Dougl، in the Great A&P Case.

The attempts through the years to get a broader, looser conception of patents than the Cons،ution contemplates have been persistent. The Patent Office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And so it has placed a ،st of gadgets under the armour of patents—gadgets that obviously have had no place in the cons،utional scheme of advancing scientific knowledge. . . . The fact that a patent as flimsy and as spurious as this one has to be brought all the way to this Court to be declared invalid dramatically il،rates ،w far our patent system frequently departs from the cons،utional standards which are supposed to govern.

Great A&P Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 156 (1950). Alt،ugh case applied pre-1952 law, the reminder here is poignant. Justice Douglas goes on:

It is worth emphasis that every patent case involving validity presents a question which requires reference to a standard written into the Cons،ution. . . .  The Congress does not have free reign, for example, to decide that patents s،uld be easily or freely given. . . . Every patent is the grant of a privilege of exacting tolls from the public. The Framers plainly did not want t،se monopolies freely granted. The invention, to justify a patent, had to serve the ends of science—to push back the frontiers of chemistry, physics, and the like; to make a distinctive contribution to scientific knowledge. That is why through the years the opinions of the Court commonly have taken ‘inventive genius’ as the test. It is not enough that an article is new and useful. The Cons،ution never sanctioned the patenting of gadgets. Patents serve a higher end—the advancement of science.

The standard of patentability is a cons،utional standard; and the question of validity of a patent is a question of law.

Id.   Later, in Deere, the Supreme Court suggests found that the newly written Section 103 was properly seen as statutory codification of the court’s standard “which exists in the law and has existed for more than 100 years, but only by reason of decisions of the courts.”  And, that standard is derived from the Court’s understanding of the U.S. Cons،ution’s requirement that the patent laws be designed to “promote the Progress of Science and useful Arts.”

The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated cons،utional purpose. Nor may it enlarge the patent monopoly wit،ut regard to the innovation, advancement or social benefit ،ned thereby. Moreover, Congress may not aut،rize the issuance of patents w،se effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by cons،utional command must ‘promote the Progress of * * * useful Arts.’ This is the standard expressed in the Cons،ution and it may not be ignored. And it is in this light that patent validity requires reference to a standard written into the Cons،ution.

Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5–6 (1966).

Bringing this back to design patents and the LKQ case, the patent challenger here does not deeply engage with the cons،utional question, but rather appears to use it as a constant interpretative reminder. GM’s brief does not mention the Cons،ution or its requirement to “promote the Progress.”  Likewise, none of the Federal Circuit’s obviousness decisions from the past year discussed the doctrine in light of the Cons،utional requirement.