Patents Affirmative

Patents Aff
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Andy, Asad, Elli, Jonathan, Sam, Will,
TOC
TOC.............................................................................................................1
1AC.............................................................................................................8
1AC.............................................................................................................9
1AC............................................................................................................ 10
1AC............................................................................................................ 11
1AC............................................................................................................ 12
1AC............................................................................................................ 13
1AC............................................................................................................ 17
1AC............................................................................................................ 18
1AC............................................................................................................ 19
KSR KILLED PATENTABILITY.........................................................................20
INNOVATION EXTENSIONS...........................................................................21
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PATENTS KEY TO INNOVATION.....................................................................32
PATENTS KEY TO INNOVATION ....................................................................34
PATENTS BETTER THAN SECRECY.................................................................37
PATENTS = INCENTIVES..............................................................................38
ONLY PATENTS SOLVE.................................................................................39
KSR DECISION HURT INNOVATION................................................................40
COMPETIVENESS EXTENSIONS.....................................................................41
RENEWABLE ENERGY TECH LOW - GERMANY.................................................42
RENEWABLES GOOD/INVESTMENT KEY.........................................................43
RENEWABLE ENERGY = INVESTORS LIKE......................................................44
LONG-TERM FOCUS KEY..............................................................................45
US COMPETIVENESS LOW............................................................................46
US COMPETIVENESS LOW............................................................................48
RENEWABLE ENERGY LOW...........................................................................49
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INNOVATION KEY – INT’L COMPETITIVENESS.................................................50
US INNOVATION KEY – ECONOMY/COMPETITIVENESS.....................................51
US ECON DECLINING...................................................................................52
US COMPETITIVENESS LOW - TRADE.............................................................53
US COMPETITIVENESS DECLINING................................................................54
US INNOVATION KEY – ECONOMY.................................................................55
INNOVATION GOOD.....................................................................................56
INNOVATION GOOD.....................................................................................57
INNOVATION GOOD – MULTIPLE REASONS....................................................58
INNOVATION GOOD – MULTIPLE REASONS....................................................59
INNOVATION GOOD – ECONOMY...................................................................60
INNOVATION KEY – GLOBAL EMISSIONS........................................................61
COMPETIVENESS ALTERNATIVE IMPACT SCENARIO........................................62
COMPETIVENESS ALTERNATIVE IMPACT SCENARIO........................................63
HEG IMPACTS.............................................................................................64
TSM GOOD.................................................................................................65
TSM GOOD.................................................................................................66
TSM GOOD.................................................................................................67
TSM GOOD.................................................................................................68
TSM GOOD.................................................................................................69
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TSM GOOD.................................................................................................70
TSM GOOD.................................................................................................71
TSM GOOD: ALT ENERGY SPECIFIC...............................................................72
TSM GOOD.................................................................................................73
TSM GOOD.................................................................................................74
TSM GOOD.................................................................................................75
TSM GOOD.................................................................................................76
TSM GOOD.................................................................................................77
TSM GOOD.................................................................................................78
TSM GOOD.................................................................................................79
TSM GOOD.................................................................................................80
TSM GOOD.................................................................................................81
TSM GOOD.................................................................................................82
TSM GOOD.................................................................................................83
TSM GOOD.................................................................................................84
TSM GOOD.................................................................................................85
TSM GOOD – FLEXIBLE.................................................................................86
TSM WORKS...............................................................................................87
AT: TSM TOO RESTRICTIVE..........................................................................88
A2: T PATENTS AREN’T INCENTIVES.............................................................89
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A2 T-F/X..................................................................................................... 91
AT: STATES................................................................................................92
A2: FUNDING CP ........................................................................................93
A2: FUNDING CP.........................................................................................94
A2: MONETARY PRIZE CP.............................................................................95
PATENTS GOOD – TRADE SECRETS...............................................................96
PATENTS GOOD – TRADE SECRETS...............................................................97
PATENTS = LONG-TERM GROWTH................................................................98
KSR BAD....................................................................................................99
KSR BAD..................................................................................................100
KSR BAD..................................................................................................101
KSR BAD..................................................................................................102
KSR BAD..................................................................................................103
KSR BAD..................................................................................................104
KSR BAD..................................................................................................105
KSR BAD – LESS PATENTS..........................................................................106
BIOTECH ADD-ON......................................................................................107
BIOTECH ADDON.......................................................................................108
BIOTECH ADDON.......................................................................................109
BIOTECH ADDON.......................................................................................110
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SC DECISIONS SPILL OVER – PRECEDENT....................................................111
NANOTECH ADD-ON..................................................................................112
NANOTECH ADD-ON..................................................................................113
NANOTECH ADD-ON..................................................................................114
GENES ADD-ON.........................................................................................115
A2 BROAD PATENTS BAD...........................................................................116
AT: PATENT BOOM....................................................................................117
AT: PATENT BOOM....................................................................................118
DOE FAILS
...............................................................................................................119
AT: PATENT TROLLS..................................................................................120
AT: PATENT TROLLS..................................................................................121
AT: PATENT TROLLS..................................................................................122
AT: PATENT TROLLS..................................................................................123
NEG EV..................................................................................................... 124
PATENTS BAD...........................................................................................124
PATENTS BAD...........................................................................................125
TSM BAD/LOW QUALITY PATENTS BAD........................................................ 126
CHANGING SYSTEM BAD............................................................................127
NANO BAD/SQUO INNOVATION FAILS.......................................................... 128
ENERGY COMPETITION BAD - ALLIANCE......................................................129

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PATENTS HIGH NOW/ PATENTS CAN’T SOLVE..............................................130
USFG FAILS..............................................................................................131
USFG FAILS..............................................................................................132
INNOVATION HIGH NOW............................................................................133
NO ENERGY WAR....................................................................................... 134
ENERGY EFFICIENCY CP.............................................................................135
PATENT TROLLS........................................................................................ 136
PATENT TROLLS BAD................................................................................. 137
PATENT BOOM..........................................................................................138
PATENT BOOM..........................................................................................139
PATENT SYSTEM FLAWED..........................................................................140
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Observation 1 is Inherency:
1. Supreme Court Raised the Bar for Obtaining a Patent

Eric Raciti, former attorney for the commissioner of patents in the USPTO’s Office for Legislative and International Affairs Et.
Al. 3-13-08, Mondaq.com: < http://www.mondaq.com/article.asp?articleid=58318> United States: Patent Standards And Investment
In Alternative Energy
Recently, the U.S. Supreme Court in KSR International, Co. v. Teleflex, Inc., 127 S. Ct. 1727 (2007), the most important patent
ruling in years, raised the bar for obtaining patents on new products that rely on new combinations of existing, publicly-known
elements. If the combination results from nothing more than "ordinary innovation" and "does no more than yield predictable
results," the Court reasoned, it is not entitled to the exclusive rights that a patent conveys. "Were it otherwise," Justice Kennedy
wrote for the unanimous Court, "patents might stifle, rather than promote, the progress of useful arts." Because most inventions
combine previously known elements, the Court’s more liberal approach to determining "obviousness" will almost certainly
make U.S. patents harder to obtain and defend in litigation. "Granting patent protection to advances that would occur in the
ordinary course without real innovation retards progress," Kennedy wrote. He added that such patents (based on only
incremental improvements) were also undesirable because they might deprive earlier innovations of "their value or utility."
2. Patent Procurement Rates in the Alternative Energy Sector Went Down as

a Result
Unfortunately for the emerging alternative energy market, the KSR decision has come at a potentially inopportune time,
when patents and innovation are more prized than ever by investors. There has recently been a boom in the number of
green-tech startups, companies that are developing environmentally friendly technology and products ranging from solar panels
to energy-efficient fluorescent bulbs to bioengineered molecules that excrete biofuel. Venture capital and private equity new
investment in clean technologies grew by 27% to $8.5 billion in 2007, according to the Cleantech Venture Network, a group
that monitors venture capital investments in environmentally friendly technologies. Cleantech expects investment in the sector
to reach $8.7 billion by 2009. However, investors have started to retreat from later-stage investments and returned to
early-stage deals, as their familiarity with the sector and technologies grows and the pipeline of commercialization-
ready opportunities dries up. If granted patents are an indication of innovation in a sector, clean technology breakthroughs
are up significantly over the past five years, but down slightly from 2006. In 2007, a little less than 900 patents were
granted. That is compared to 2002, when less than 750 patents were granted in the sector, and in 2006, when a little more than
900 were granted. These numbers were reported through a new quarterly cleantech patent tracking service offered by the New
York based firm of Heslin Rothenberg Farley & Mesiti P.C. The Clean Energy Patent Growth Index (CEPGI) tracks the
number of patents granted in solar wind, electric/hybrid vehicles, fuel cells, hydroelectric, tidal/wave, geothermal,
biomass/biofuels, and other renewable energy technologies.
A breakdown in the patent procurement pipeline could lead to a negative impact on investments in alternative energy.
Surveys have been conducted to validate the use of patents as a proxy for innovations (see Cohen, Nelson, Walsh, 2000;
Arundel and Kabla, 1998). All these studies have highlighted the existence of a marked difference among technological
sectors. For example, the medical device field has long used patents as a means for appropriating returns from product and
process innovation. In fact, in the medical device field, the Cohen, Nelson, Walsh (2000) report found that the mean percentage
of product innovation for which patents are considered effective is almost 55%. Another reason why patents have been so
useful in the medical device field is that big companies often license or acquire new technologies. Alternative energy also has
the potential to focus on IP transaction work since it is likely that big oil, gas, and chemical companies are also going to have to
license or acquire new technologies.
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Observation 2 is Innovation:
1. The Alternative Energy Industry Lacks investors in the United States and
this spills over to other countries
Robert M. Margolis, professor of science: Woodrow Wilson School of Public and International Affairs, Princeton University, Princeton and
Daniel M. Kammen, Energy and Resources Group, University of California, Berkeley. 8-17-1999
Investments in energy technology research and development (R&D), and in associated human and institutional capacity, are
fundamental to our ability to respond to changing economic and environmental needs. This paper uses data on R&D
investments and patent records to examine the relationship between expenditures on R&D and innovation, with a particular
focus on the energy sector. We observe that R&D spending and patents, both overall and in the energy sector, have been highly
correlated over the past two decades in the US. In addition, we observe that the R&D intensity of the US energy sector is
extremely low when compared to other sectors. We argue that the data illustrates the critical role of public policy, as evidenced
by the impact of recent technology transfer related legislation on the total number and on the ownership of innovations
resulting from federally sponsored R&D. We conclude that there has been a significant and sustained pattern of under-
investment in the US energy sector, and that recent declines in energy R&D exacerbate this situation. Innovation for the US
energy infrastructure is also a significant driver of the international energy economy. Thus, the spillover from US under-
investment detracts from the global capacity to respond to emerging risks such as global warming.
2. A stagnant energy sector made investors run, and only US support for
innovative renewable technologies can win them back – it’s poised to
become a world-leading industry.
Daniel M. Kammen et al, prof of Energy and Society with Energy Resource Group, Environment, Vol. 43 No. 10,
Renewable Energy: A Viable Choice, 12/01, p. 4 [http://rael.berkeley.edu/files/2001/Herzog-Lipman-Edwards-Kammen-
RenewableEnergy-2001.pdf]
The push to develop renewable and other clean energy technologies is no longer being driven solely by environmental
concerns; these technologies are becoming economically competitive. According to Merrill Lynch’s Robin Batchelor, the
traditional energy sector has lacked appeal to investors in recent years because of heavy regulation, low growth, and a
tendency to be cyclical. The United States’ lack of support for innovative new companies sends a signal that U.S. energy
markets are biased against new entrants. The clean energy industry could, however, become a world-leading industry
akin to that of U.S. semi-conductors and computer systems.
3. The KSR decision is blocking patents on innovative and new alternative

energy technology.
Eric Raciti, former attorney for the commissioner of patents in the USPTO’s Office for Legislative and International Affairs
Et. Al. 3-13-08, Mondaq.com: < http://www.mondaq.com/article.asp?articleid=58318> United States: Patent Standards And
Investment In Alternative Energy
While it is unclear what precisely has caused a slowdown in the number of alternative energy patents in the past year, it is very
possible that the effects of the more stringent patentability standards are being felt. Alternative energy often
incorporates older technologies, and thus meaningful advances are perhaps susceptible to being seen as merely
"ordinary innovation." Because of the concerns mentioned above, the IP groundwork for a company hoping to succeed
in the alternative energy industry should be prioritized to a level above the typical, garden-variety filing of a few patent
applications. The writing is on the wall. To better the chances for successfully attracting investment, companies need to
view their IP procurement as a global and strategic undertaking, and not as commodity work.
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4. The patent system is a driving force for innovation and R&D which was
undermined by the KSR decision.
Brief of Amicus Curiae Pharmaceutical Research and Manufacturers of America in Support of Respondents (PhRMA),
2006, Westlaw.
PhRMA submits that to show that a combination of prior art references renders a claimed invention obvious, within the
meaning of 35 U.S.C. § 103(a), a challenger should have to provide evidence of either an express or an implicit motivation,
suggestion, or teaching to combine the teachings of the references in the manner alleged to render the claimed invention as a
whole obvious. Rejecting the requirement that the prior art show a motivation, suggestion, or teaching before finding a patent
claim invalid under § 103 will make validity challenges unpredictable. The focus will shift from an objective analysis of what
the prior art teaches to a person having ordinary skill in the art to a subjective analysis by the judicial officer considering the
patent of *3 whether the claimed invention has sufficient merit to warrant a patent. Such an undesirable change in the law
will significantly undermine the confidence of innovators such as PhRMA members in their ability to enforce patents
against free-riding infringers who use the fruits of research and clinical-testing efforts of PhRMA members without
incurring the costly expenses associated with developing, testing, and obtaining approval of new drug products. Hence,
PhRMA members have a strong interest in preserving an obviousness standard that promotes predictability and
uniformity in the obviousness analysis, to preserve the patent system as a strong economic driving force for highly
beneficial, yet expensive, research and development efforts.
5. Patents are incentives for innovation in two distinct ways: The availability of
patents in itself is an incentive as is the post filing monopoly.
LAWRENCE S. ROBBINS, JD Robbins, Russell, Englert, Orseck & Untereiner LLP, BRIEF OF ALTITUDE CAPITAL
PARTNERS, EXPANSE NETWORKS, INC., INFLEXION POINT STRATEGY, LLC, INTERDIGITAL
COMMUNICATIONS CORP., IPOTENTIAL, LLC, OCEAN TOMO, LLC, AND ONSPEC ELECTRONIC INC. AS
AMICI CURIAE INSUPPORT OF RESPONDENTS, 2006
Patent systems – U.S. and foreign – promote innovation by creating a set of inter-related incentives. This Court’s
cases emphasize how the patent system creates incentives to invent and to disclose inventions to the world. E.g.,
Eldred v. Ashcroft, 537 U.S. 186, 216 (2003); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 150-151
(1989). These pre-patent incentives are very real and are illustrated by entities like pharmaceutical companies,
professional inventors (such as the founder of amicus Expanse Networks), and research-and-development companies
(such as amicus OnSpec Electronic). This Court has occasionally mentioned a related but distinct – and, in this case,
equally important – set of incentives. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 730-731
(2002) (patent “clarity is essential to promote progress, because it enables efficient investment in innovation”). After the
patent has issued – or in expectation of its issuance – the rights it confers make it possible to attract investment for
the purpose of commercializing the invention claimed by the patent. It is always risky to bring something new to
market, and it is the promise of the limited monopoly conferred by the patent grant – the assurance that the fruits
of the investment will not be appropriated by anyone who figures out how to copy the product – that makes the
investment attractive. See, e.g., Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407
(2004) (“The opportunity to charge monopoly prices – at least for a short period – is what attracts ‘business acumen’ in
the first place; it induces risk taking that produces innovation and economic growth.”). As Judge Jerome Frank once
summed up, referring to a type of competition that is vital to the health of the economy: “The David Co. v. Goliath, Inc.
kind of competition is dependent on investment in David Co. – the small new competitor. And few men will invest in
such a competitor unless they think it has a potential patent monopoly as a slingshot.” Picard v. United Aircraft Corp.,
128 F.2d 632, 643 (2d Cir. 1942) (concurring opinion).2
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6. A US “innovation revolution” in alternative energy is vital to domestic
security and worldwide energy transformation – spills over.
John Deutsch et al, former undersecretary of DOE and Institute Professor at the Massachusetts Institute of
Technology, Issues in Science and Technology, “Ending the Inertia on Energy Policy,” Winter 08,
http://www.issues.org/24.2/ogden.html
The United States must confront the reality of its energy circumstances. Consumers and industry are facing the prospect of a
continued rise in the real price of oil and natural gas as conventional reserves are depleted. The increased reliance of the United
States and its partners on imported oil—a large proportion of which comes from the hostile and politically fragile Persian Gulf
—is constraining the nation’s pursuit of important foreign policy objectives. At the same time, greenhouse gas emissions,
especially carbon dioxide emissions from coal-fired electricity-generation plants, are contributing to dangerous global climate
change. In the absence of an aggressive U.S. carbon-emission control policy, there in no possibility of an international
agreement on greenhouse gas emissions that includes both developed countries and rapidly emerging ones such as China and
India.
There is only one solution to the challenge: The United States must begin the long process of transforming its economy from
one that is dependent on petroleum and high-emission coal-fired electricity to one that uses energy much more efficiently,
develops alternative fuels, and switches to electricity generation that is low-carbon or carbon-free.
The benefits of such a transformation are indisputable: It would avoid unnecessary cost and disruption to the U.S. economy,
protect the environment, and enhance national security. The United States has sought to adopt an effective and coherent energy
policy since the first oil crisis of 1973, but it has failed to do so. The challenge for U.S. political leaders is to craft, fund, and
diligently sustain a range of policy measures that will make this critical transition as certain, rapid, and cost-effective as
possible.
In order to meet this challenge, the United States must undergo an innovation revolution. The rate at which the United States
is able to develop and deploy new energy technologies will, to a great extent, determine the ultimate speed and cost of the
economic transformation. Large-scale carbon capture and sequestration, advanced batteries, plug-in hybrid vehicle
technologies, next-generation biofuels for the transportation sector, and a number of other innovations will be vital to achieving
a low-carbon economy, and the United States must not only develop but deploy these technologies. The benefits of such
innovation will accrue to other countries as well, for U.S. technical assistance programs and trade will carry these advances
abroad.
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Observation 3 is competitiveness:
1. Lack of policy consistency has crippled US energy leadership – we now

trail Europe and Japan in innovation.
Eric Martinot, Center for Resource Solutions, “RENEWABLE ENERGY POLICIES AND MARKETS IN
THE UNITED STATES,” 2005, p. 24, http://www.resource-solutions.org/lib/librarypdfs/IntPolicy-
RE.policies.markets.US.pdf
The history of renewable energy policies and incentives in the United States points to a few clear lessons:
First, policy consistency is essential. US renewable energy policy has suffered from inconsistency as
incentives have been repeatedly enacted for short periods of time and then suspended. This stop-and-go
tendency has seriously hampered the development of markets and industries. As a result, the United
States, once the world leader in renewable energy technologies and generation, now lags behind Europe
and Japan in many respects. The up-and-down movement of the wind industry during 2001-2004 due to
expiration of the production tax credit (PTC) is the best example of how inconsistent policies can affect an
industry. The failure of the company LUZ in the late 1980s to continue developing solar thermal power
stations is another. As Berger wrote in 1997, “federal aid has vacillated….National energy
policy—especially as reflected in the tax code—changes its emphasis too quickly to provide the long-term
stable planning horizon that major new renewable energy investments require. Foreign governments,
meanwhile, give their renewable energy industries more generous and longer-term support than does the
United States, therefore providing a more predictable operating environment, creating stiff competition for
American renewable energy companies….For all these reasons, the public’s long-term interests in swiftly
bringing a renewable energy economy into being are neglected.”
2. Renewable energy innovation is key to international competitiveness.

Daniel M. Kammen et al, prof of Energy and Society with Energy Resource Group, Environment, Vol. 43 No. 10, Renewable
Energy: A Viable Choice, 12/01 [http://rael.berkeley.edu/files/2001/Herzog-Lipman-Edwards-Kammen-RenewableEnergy-
2001.pdf]
The United States has lagged in its commitment to maintain leadership in key technological and industrial areas, many of
which are related to the energy sector. The United States has fallen behind Japan and Germany in the production of
photovoltaic systems, behind Denmark in wind and cogeneration system deployment, and behind Japan, Germany, and Canada
in the development of fuel-cell systems. Developing these industries within the United States is vital to the country’s
international competitiveness, commercial strength, and ability to provide for its own energy needs.
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3. The Global Primacy of the United States Depends on its Ability to
innovate and stay competitive
Adam Segal Foreign Affairs, 17 November 2004,
The United States' global primacy depends in large part on its ability to develop new technologies and industries
faster than anyone else. For the last five decades, U.S. scientific innovation and technological entrepreneurship
have ensured the country's economic prosperity and military power. It was Americans who invented and
commercialized the semiconductor, the personal computer, and the Internet; other countries merely followed the U.S.
lead.
Today, however, this technological edge-so long taken for granted-may be slipping, and the most serious challenge is
coming from Asia. Through competitive tax policies, increased investment in research and development (R&D), and preferential
policies for science and technology (S&T) personnel, Asian governments are improving the quality of their science and ensuring the exploitation of
future innovations. The percentage of patents issued to and science journal articles published by scientists in China, Singapore, South Korea, and
Taiwan is rising. Indian companies are quickly becoming the second-largest producers of application services in the world, developing, supplying, and
managing database and other types of software for clients around the world. South Korea has rapidly eaten away at the U.S. advantage in the
manufacture of computer chips and telecommunications software. And even China has made impressive gains in advanced technologies such as lasers,
biotechnology, and advanced materials used in semiconductors, aerospace, and many other types of manufacturing.
Although the United States' technical dominance remains solid, the globalization of research and development is exerting
considerable pressures on the American system. Indeed, as the United States is learning, globalization cuts both ways: it
is both a potent catalyst of U.S. technological innovation and a significant threat to it. The United States will never be
able to prevent rivals from developing new technologies; it can remain dominant only by continuing to innovate
faster than everyone else. But this won't be easy; to keep its privileged position in the world, the United States
must get better at fostering technological entrepreneurship at home.
4.
American primacy is vital to accessing every major impact—the only threat to
world peace is if we allow it to collapse
Thayer, professor of security studies at Missouri State, November 06 (Bradley, The
National Interest, “In Defense of Primacy”, November/December, p. 32-37)
So the debate revolves around the desirability of maintaining American primacy. Proponents of
retrenchment focus a great deal on the costs of U.S. action--but they fail to realize what is good about
American primacy. The price and risks of primacy are reported in newspapers every day; the
benefits that stem from it are not.
A GRAND strategy of ensuring American primacy takes as its starting point the protection of
the U.S. homeland and American global interests. These interests include ensuring that critical
resources like oil flow around the world, that the global trade and monetary regimes flourish
and that Washington's worldwide network of allies is reassured and protected. Allies are a great
asset to the United States, in part because they shoulder some of its burdens. Thus, it is no surprise to see
NATO in Afghanistan or the Australians in East Timor.
In contrast, a strategy based on retrenchment will not be able to achieve these fundamental
objectives of the United States. Indeed, retrenchment will make the United States less secure
than the present grand strategy of primacy. This is
because threats will exist no matter what role America chooses to play in international
politics. Washington cannot call a "time out", and it cannot hide from threats. Whether they
are terrorists, rogue states or rising powers, history shows that threats must be confronted.
Simply by declaring that the United States is "going home", thus abandoning its commitments
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or making unconvincing half-pledges to defend its interests and allies, does not mean that
others will respect American wishes to retreat. To make such a declaration implies weakness
and emboldens aggression. In the anarchic world of the animal kingdom, predators prefer to
eat the weak rather than confront the strong. The same is true of the anarchic world of
international politics. If there is no diplomatic solution to the threats that confront the United States,
then the conventional and strategic military power of the United States is what protects the country from
such threats.
And when enemies must be confronted, a strategy based on primacy focuses on engaging enemies
overseas, away from American soil. Indeed, a key tenet of the Bush Doctrine is to attack terrorists far from
America's shores and not to wait while they use bases in other countries to plan and train for attacks
against the United States itself. This requires a physical, on-the-ground presence that cannot be achieved
by offshore balancing.
Indeed, as Barry Posen Posen: see Poznań, Poland. has noted, U.S. primacy is secured because America, at present, commands the
"global commons"--the oceans, the world's airspace and outer space--allowing the United States to project its power far from its
borders, while denying those common avenues to its enemies. As a consequence, the costs of power projection for the United States
and its allies are reduced, and the robustness of the United States' conventional and strategic deterrent capabilities is increased. (2)
This is not an advantage that should be relinquished lightly.
A remarkable fact about international politics today--in a world where American primacy is
clearly and unambiguously on display--is that countries want to align themselves with the
United States. Of course, this is not out of any sense of altruism, in most cases, but because doing so
allows them to use the power of the United States for their own purposes--their own protection, or to gain
greater influence.
Of 192 countries, 84 are allied with America--their security is tied to the United States through
treaties and other informal arrangements--and they include almost all of the major economic
and military powers. That is a ratio of almost 17 to one (85 to five), and a big change from the Cold War
when the ratio was about 1.8 to one of states aligned with the United States versus the Soviet Union.
Never before in its history has this country, or any country, had so many allies.
U.S. primacy--and the bandwagoning effect--has also given us extensive influence in international politics,
allowing the United States to shape the behavior of states and international institutions. Such influence
comes in many forms, one of which is America's ability to create coalitions of like-minded states to free
Kosovo, stabilize Afghanistan, invade Iraq or to stop proliferation through the Proliferation Security
Initiative (PSI). Doing so allows the United States to operate with allies outside of the UN, where it can be
stymied by opponents. American-led wars in Kosovo, Afghanistan and Iraq stand in contrast to the UN's
inability to save the people of Darfur or even to conduct any military campaign to realize the goals of its
charter. The quiet effectiveness of the PSI in dismantling Libya's WMD programs and unraveling the A. Q.
Khan proliferation network are in sharp relief to the typically toothless attempts by the UN to halt
proliferation.
You can count with one hand countries opposed to the United States. They are the "Gang of Five": China,
Cuba, Iran, North Korea and Venezuela. Of course, countries like India, for example, do not agree with all
policy choices made by the United States, such as toward Iran, but New Delhi is friendly to Washington.
Only the "Gang of Five" may be expected to consistently resist the agenda and actions of the United
States.
China is clearly the most important of these states because it is a rising great power. But even Beijing is
intimidated by the United States and refrains from openly challenging U.S. power. China proclaims that it
will, if necessary, resort to other mechanisms of challenging the United States, including asymmetric
strategies such as targeting communication and intelligence satellites upon which the United States
depends. But China may not be confident those strategies would work, and so it is likely to refrain from
testing the United States directly for the foreseeable future because China's power benefits, as we shall
see, from the international order U.S. primacy creates.
The other states are far weaker than China. For three of the "Gang of Five" cases--Venezuela, Iran, Cuba--it
is an anti-U.S. regime that is the source of the problem; the country itself is not intrinsically anti-American.
Indeed, a change of regime in Caracas, Tehran or Havana could very well reorient relations.
THROUGHOUT HISTORY, peace and stability have been great benefits of an era where there
was a dominant power--Rome, Britain or the United States today. Scholars and statesmen
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have long recognized the irenic effect of power on the anarchic world of international politics.
Everything we think of when we consider the current international order--free trade, a robust
monetary regime, increasing respect for human rights, growing democratization is directly
linked to U.S. power. Retrenchment proponents seem to think that the current system can be
maintained without the current amount of U.S. power behind it. In that they are dead wrong
and need to be reminded of one of history's most significant lessons: Appalling things happen
when international orders collapse. The Dark Ages followed Rome's collapse. Hitler succeeded
the order established at Versailles. Without U.S. power, the liberal order created by the United
States will end just as assuredly. As country and western great Ral Donner sang: "You don't know what
you've got (until you lose it)."
Consequently, it is important to note what those good things are. In addition to ensuring the security of the
United States and its
allies, American primacy within the international system causes many positive outcomes for Washington
and the world. The first has been a more peaceful world. During the Cold War, U.S. leadership reduced
friction among many states that were historical antagonists, most notably France and West Germany.
Today, American primacy helps keep a number of complicated relationships aligned--between
Greece and Turkey, Israel and Egypt, South Korea and Japan, India and Pakistan, Indonesia
and Australia. This is not to say it fulfills Woodrow Wilson's vision of ending all war. Wars still occur where
Washington's interests are not seriously threatened, such as in Darfur, but a Pax Americana does
reduce war's likelihood, particularly war's worst form: great power wars.
Second, American power gives the United States the ability to spread democracy and other
elements of its ideology of liberalism. Doing so is a source of much good for the countries concerned
as well as the United States because, as John Owen noted on these pages in the Spring 2006 issue, liberal
democracies are more likely to align with the United States and be
sympathetic to the American worldview. (3) So, spreading democracy helps maintain U.S. primacy.
In addition, once states are governed democratically, the likelihood of any type of conflict is
significantly reduced. This is not because democracies do not have clashing interests. Indeed they do.
Rather, it is because they are more open, more transparent and more likely to want to resolve things
amicably in concurrence with U.S. leadership. And so, in general, democratic states are good for their
citizens as well as for advancing the interests of the United States.
Critics have faulted the Bush Administration for attempting to spread democracy in the Middle East, labeling such an effort a modern
form of tilting at windmills. It is the obligation of Bush's critics to explain why democracy is good enough for Western states but not
for the rest, and, one gathers from the argument, should not even be attempted.
Of course, whether democracy in the Middle East will have a peaceful or stabilizing influence on America's interests in the short run is
open to question. Perhaps democratic Arab states would be more opposed to Israel, but nonetheless, their people would be better off.
The United States has brought democracy to Afghanistan, where 8.5 million Afghans, 40 percent of them women, voted in a critical
October 2004 election, even though remnant Taliban forces threatened them. The first free elections were held in Iraq in January
2005. It was the military power of the United States that put Iraq on the path to democracy. Washington fostered democratic
governments in Europe, Latin America, Asia and the Caucasus. Now even the Middle East is increasingly
democratic. They may not yet look like Western-style democracies, but democratic progress has been
made in Algeria, Morocco, Lebanon, Iraq, Kuwait, the Palestinian Authority and Egypt. By all accounts, the
march of democracy has been impressive.
Third, along with the growth in the number of democratic states around the world has been the growth
of the global economy. With its allies, the United States has labored to create an economically
liberal worldwide network characterized by free trade and commerce, respect for international
property rights, and mobility of capital and labor markets. The economic stability and
prosperity that stems from this economic order is a global public good from which all states
benefit, particularly the poorest states in the Third World. The United States created this network not out
of altruism but for the benefit and the economic well-being of America. This economic order forces
American industries to be competitive, maximizes efficiencies and growth, and benefits defense as well
because the size of the economy makes the defense burden manageable. Economic spin-offs foster the
development of military technology, helping to ensure military prowess.
Perhaps the greatest testament to the benefits of the economic network comes from Deepak Lal, a former
Indian foreign service diplomat and researcher at the World Bank, who started his career confident in the
socialist ideology of post-independence India. Abandoning the positions of his youth, Lal now recognizes
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that the only way to bring relief to desperately poor countries of the Third World is through the adoption of
free market economic policies and globalization, which are facilitated through American primacy. (4) As a
witness to the failed alternative economic systems, Lal is one of the strongest academic proponents of
American primacy due to the economic prosperity it provides.
Fourth and finally, the United States, in seeking primacy, has been willing to use its power not only
to advance its interests but to promote the welfare of people all over the globe. The United
States is the earth's leading source of positive externalities for the world. The U.S. military has
participated in over fifty operations since the end of the Cold War--and most of those missions have been
humanitarian in nature. Indeed, the U.S. military is the earth's "911 force"--it serves, de facto, as the
world's police, the global paramedic and the planet's fire department. Whenever there is a natural
disaster, earthquake, flood, drought, volcanic eruption, typhoon or tsunami, the United States assists the
countries in need. On the day after Christmas in 2004, a tremendous earthquake and tsunami occurred in
the Indian Ocean near Sumatra, killing some 300,000 people. The United States was the first to respond
with aid. Washington followed up with a large contribution of aid and deployed the U.S. military to South
and Southeast Asia for many months to help with the aftermath of the disaster. About 20,000 U.S. soldiers,
sailors, airmen and marines responded by providing water, food, medical aid, disease treatment and
prevention as well as forensic assistance to help identify the bodies of those killed. Only the U.S. military
could have accomplished this Herculean effort. No other force possesses the communications capabilities
or global logistical reach of the U.S. military. In fact, UN peacekeeping operations depend on the United
States to supply UN forces.
American generosity has done more to help the United States fight the War on Terror than
almost any other measure. Before the tsunami, 80 percent of Indonesian public opinion was
opposed to the United States; after it, 80 percent had a favorable opinion of America. Two years
after the disaster, and in poll after poll, Indonesians still have overwhelmingly positive views of the United States. In October 2005, an
enormous earthquake struck Kashmir, killing about 74,000 people and leaving three million homeless. The U.S. military responded
immediately, diverting helicopters fighting the War on Terror in nearby Afghanistan to bring relief as soon as possible. To help those
in need, the United States also provided financial aid to Pakistan; and, as one might expect from those witnessing the munificence of
the United States, it left a lasting impression about America. For the first time since 9/11, polls of Pakistani opinion have found that
more people are favorable toward the United States than unfavorable, while support for Al-Qaeda dropped to its lowest level.
Whether in Indonesia or Kashmir, the money was well-spent because it helped people in the wake of disasters,
but it also had a real impact on the War on Terror. When people in the Muslim world witness the U.S. military conducting a
humanitarian mission, there is a clearly positive impact on Muslim opinion of the United States. As the War on Terror is a war of ideas
and opinion as much as military action, for the United States humanitarian missions are the equivalent of a blitzkrieg.
THERE IS no other state, group of states or international organization that can provide these
global benefits. None even comes close. The United Nations cannot because it is riven with conflicts
and major cleavages that divide the international body time and again on matters great and trivial. Thus it
lacks the ability to speak with one voice on salient issues and to act as a unified force once a decision is
reached. The EU has similar problems. Does anyone expect Russia or China to take up these
responsibilities? They may have the desire, but they do not have the capabilities. Let's face it: for the
time being, American primacy remains humanity's only practical hope of solving the world's
ills.
While the benefits of American primacy are considerable, no country can ever escape from the iron law of
Economics 101--there is no free lunch. American primacy is no exception. Leadership requires that the
United States incur costs and run risks not borne by other countries. These costs can be stark and brutal,
and they have to be faced directly by proponents of primacy. It means that some Americans will die in the
service of their country. These are the costs, and they are significant. Americans should be conscious of
them and use them in their contemplation of the value of primacy. Additionally, the costs of primacy must
impose upon American policy-makers a sharp focus and prudence concerning how they wield American
power. Equally, all Americans should be aware of the benefits that flow from primacy and that they enjoy.
While primacy's advantages and costs must be weighed objectively and solemnly, the scholars who are
proclaiming that the sky is falling, primacy is doomed and America must retrench have to confront the
reality of U.S. power. The world is a long way from seeing the end of American primacy, and it is in
America's interest--and the world's--to have it last as long as possible.
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1AC
Contention 4 is solvency:
1. Overturning KSR key to private sector adoption and commercialization –

any uncertainty that accompanies a patent means rejection. (note: bottom
section included in case we can access university spillover)
WISCONSIN ALUMNI RESEARCH FOUNDATION et al, as Amici Curiae Supporting Respondents at 11-
12, KSR Int'l Co. v. Teleflex, Inc., No. 04-1350 (U.S. Oct. 16, 2006)
As a practical matter, the greater need for the patent incentive lies primarily with universities, other non-profit organizations
and small business. Technology transfer by universities and non-profits depends entirely on the underlying patent position.
Given the fact that most university-generated inventions are embryonic in nature and require a great deal of development and
often are well ahead of their time in a commercial sense, the need for exclusivity in licensing can be critical. Any uncertainty
which accompanies a patent and its scope and validity makes it a candidate for rejection of licensing by the private
sector. That, in turn, means that the likelihood of development to a commercial product or process is much diminished
and that the public will be deprived of its benefits.
Moreover, a large segment of university licensing is with small companies and, in fact, the Bayh-Dole Act requires that
preference be given to licensing of small business. 35 U.S.C. § 202 (c)(7)(D). It has been recognized by the National Science
Foundation that small businesses contribute the greatest number of jobs to the U.S. economy and it has been estimated that
university licensing has translated into 260,000 jobs and further, the licensing of inventions from universities, teaching
hospitals, research institutes and patent management firms added approximately $40 billion to the domestic economy.11
The university sector’s contribution to many facets of the U.S. and global economy, and to the enhancement of the human
condition, is reliant upon a viable, sound and technology-neutral patent system. As such, the question before this Court is vital
to the continued effectiveness of university technology transfer. Any changes that weaken the patent system will ultimately
also weaken the ability of the university sector to transfer the fruits of its research endeavors to benefit and improve the human
condition.
condition, is reliant upon a viable, sound and technology neutral patent system. As such, the question before this Court is vital
condition.
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1AC
2. The incentives created by patents increase innovation but only under the
predictable TSM system.
It is the combination of incentives created by the patent system that allows small entities like a number of the
undersigned amici to compete in the contemporary American economy, and to foster further innovation. Without
protection for their intellectual property, smaller firms would be unable to attract financing and survive. The
result would be greatly diminished diversity and therefore less innovation. See, e.g., U.S. SMALL BUSINESS ADMIN.
OFFICE OF ADVOCACY, FREQUENTLY ASKED QUESTIONS 1 (2005), http://www.sba.gov/ advo/stats/sbfaq.pdf
(Small businesses “[p]roduce 13 to 14 times more patents per employee than large patenting firms. These patents are
twice as likely as large firm patents to be among the one percent most cited.”); WENDY H. SCHACHT & JOHN R.
THOMAS, PATENT REFORM: INNOVATION ISSUES 10 (Congr. Res. Serv. July 15, 2005) (describing individuals and
small entities as “a significant source of innovative products and services”). The contributions to the commercial
marketplace of such smaller firms depend on those firms’ ability to form contracts based on their intellectual property
rights. Those contributions, moreover, are facilitated by the existence of intermediaries that specialize in the valuation,
licensing or sale, and, when necessary, enforcement of intellectual property rights. The entire economy thus benefits
when the market for intellectual property rights is as liquid and transparent as possible. Each of the undersigned
amici, therefore, is a living illustration of the proper functioning of the patent system. In different ways, each forms part
of a cyclical ecology in which invention is encouraged and commercialization is made possible by the availability of
capital in conjunction with the ready transferability of intellectual property rights. For this system to work, however,
patent validity must be predictable at every stage. Investment in innovation is chilled when patentability is not
predictable. “When decisions are being made [in the board or budget committee room], the gambler’s spirit is low and
any minor cold water on a request for research” – including uncertainty in the patent laws – “is apt to militate against a
favorable research decision.”3 Similarly, without predictability, investors will be less likely to back independent
innovators at both the pre-application and postapplication stages. See Br. of IBM Corp. in Support of Neither Party 4
(without clarity and predictability respecting patentability, “the public cannot discern the scope of the patent until after all
infringement litigation has concluded and will not invest in innovative products that might potentially fall within the
patent’s scope”). Licensing transactions will become less efficient because the parties will have poor information about
the value of the right being bargained for.4 In short, without predictability as to validity and patentability, innovation
would suffer. The only winners would be a small subset of corporations – including the computer industry players
supporting petitioner here – that do not depend on the patent system because they are so dominant.
3. There is no evidence that the TSM standard leads to bad patents.

Amici’s basic complaint is that the Federal Circuit’s standard results in patents of poor quality. But amici have
presented no evidence that the motivation-to-combine standard is responsible for rampant issuance or validation
of so-called “bad patents.” Two or three cherry-picked examples are not evidence that a system is broken. One need not
agree with every last application of the Federal Circuit’s standard to conclude that the standard itself is basically sound. It
is, however, worth noting that none of petitioner’s and its amici’s examples shows that the motivation-to-combine
inquiry is responsible for poor patent quality.
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1AC
4. The TSM test injects objectivity and predictability into the subjective
question of obviousness
Q. TODD DICKINSON V.P. and Chief IP Counsel General Electric Co, et al. 2006, BRIEF FOR AMICI CURIAE 3M
CO., GENERAL ELECTRIC CO., PROCTER & GAMBLE CO., E.I. DUPONT DE NEMOURS AND CO., AND JOHNSON
& JOHNSON IN SUPPORT OF RESPONDENTS
Amici strongly support the Federal Circuit’s existing “motivation, suggestion, or teaching” test as the exclusive standard for
determining whether or not a combination or modification of the prior art may be made to render a claimed invention obvious.
Since the inception of the Federal Circuit, this test has come to offer an objective evidentiary standard on which patentees
and the public have come to rely. The Federal Circuit’s test provides an objective evidentiary framework for patent
applicants and patent examiners to use to assess the patentability of claimed subject matter during prosecution in the
Patent & Trademark Office. Likewise, patentees and defendants in litigation involving issued patents have a clear
understanding of the evidence needed to support an obviousness defense, and judges and juries have a framework
against which they can measure the patent challenger’s obviousness evidence. As such, the Federal Circuit’s test lends
objectivity and predictability to the inherently subjective question of what would have been obvious to one skilled in the
art at the time the invention was made.
5. Criticism that the TSM test is too rigid is not based on the facts.
Q. TODD DICKINSON V.P. and Chief IP Counsel General Electric Co, et al. 2006, BRIEF FOR AMICI CURIAE 3M CO.,
GENERAL ELECTRIC CO., PROCTER & GAMBLE CO., E.I. DUPONT DE NEMOURS AND CO., AND JOHNSON &
JOHNSON IN SUPPORT OF RESPONDENTS
KSR and its amici criticize the Federal Circuit’s “motivation, suggestion, or teaching” standard for being too “rigid”
and too demanding because it allegedly requires the identification of an explicit teaching in a prior art reference. E.g.
Pet. Br. at 32-43; Amici Br. for Time-Warner et al., at 9-17. In doing so, they attack the proverbial straw-man, knocking
down a standard that does not exist. To the contrary, the motivation to combine does not need to be explicit or even
written. As the Federal Circuit explained on numerous occasions, “[a] suggestion, teaching, or motivation to combine
the relevant prior art teachings does not have to be found explicitly in the prior art, as ‘the teaching, motivation, or
suggestion may be implicit from the prior art as a whole, rather than expressly stated in the references.’” In re Kahn,
441 F.3d 977, 986 (Fed. Cir. 2006) (quoting In re Kotzab, 217 F.3d 1365, 1370 (Fed. Cir. 2000)). In fact, evidence for the
requisite motivation, suggestion, or teaching “may flow from the prior art references themselves, the knowledge of one of
ordinary skill in the art, or, in some cases, from the nature of the problem to be solved.” Brown & Williamson Tobacco
Corp. v. Philip Morris Inc., 229 F.3d 1120, 1125 (Fed. Cir. 2000).
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KSR Killed Patentability
The KSR Decision Will Result in Higher Standards for Patents

James Malackowski and Jonathan A. Barney, Malackowski is the President and Chief Executive Officer of Ocean Tomo, LLC,
Barney is Founder and CEO of Patent Ratings, LLC, 6-8-08, “What is Patent Quality” <www.docs.piausa.org/What-is-Patent-
Quality-6-8-07.doc>
Under KSR patent examiners are now empowered to more carefully review applications for obviousness and are not bound by
rigidly applied rules for determining obviousness.
It is anticipated that the KSR decision will help examiners raise the patentability bar somewhat and reject cases that
would have previously been on the fringe. The case may also likely encourage additional validity challenges of existing
patents in the short run, but in the end should result in stronger, more enforceable patents.
The KSR decision defeated the entire patent system

Brief of Amicus Curiae Pharmaceutical Research and Manufacturers of America in Support of Respondents (PhRMA), 2006,
Westlaw.
Through change in analytical perspective resulting from the enactment of § 103, patentability analysis now requires objective
evidence that one of skill in the art would readily deduce a claimed combination from the prior art. Subjective assessment by
the judiciary of whether the claimed subject matter meets the indefinable definition of “invention” has been repealed. It should
not be effectively resurrected by permitting subjective conclusions or conclusory allegations of how one skilled in the art
would use the prior art to govern an obviousness analysis concerning a claimed combination. Rather, the law should continue
to demand that objective evidence be used in the analysis to show that, before the applicant's invention, one of ordinary skill in
the art would have recognized that the prior art teachings could be combined as claimed in the patent. A lesser standard
would lose sight of the congressional directive to consider the invention “as a whole.” The evidence can be direct or
circumstantial, i.e., an express or implicit motivation to combine the prior art teachings, but there must be evidence. That is
what the “motivation-suggestion teaching” (“MST”) test does. It requires evidence to support the contention that where all the
components of a claimed invention are found individually in the prior art, one of skill in the art would find the claimed
combination, when viewed “as a whole,” obvious. There is no good reason to reject that test in favor of an unspecified
standard that focuses the analysis on the differences between individual components of the claimed combination
without demanding any objective evidence to ascertain whether the combination when considered as a whole would
have been obvious as the statute explicitly requires. As Judge Rich explained, “what must have been obvious is ‘the subject
matter as a whole.‘ … If, for example, a combination is claimed, Section 103 requires that to invalidate the claim, it must be
shown that the combination was obvious, not merely its components.” Giles S. Rich, Laying the Ghost of the Invention
Requirement, 1 APLA Q.J. 26, 34 (1972), reprinted in 14 Fed. Cir. B.J. 163, 70 (2004) [hereinafter “Ghost”]. Rejecting the
MST test will reintroduce subjectivity, hindsight, and uncertainty into patentability analysis, defeating the whole patent
system and casting a cloud over many meritorious combination patents.
The KSR decision unbalanced the patent system.

JOHNSON IN SUPPORT OF RESPONDENTS http://supreme.lp.findlaw.com/supreme_court/docket/2006/november/04-1350-ksr-v-
teleflex.html
Thus, objective evidentiary standards to help guide the obviousness inquiry are essential to provide consistency and objectivity
to this fundamental issue of patent law. For almost 25 years, patent owners and their competitors have invested in R&D,
and have built patent portfolios, under the Federal Circuit’s “motivation, suggestion, teaching” requirement. A
fundamental change in that requirement now not only would undermine those investments and settled expectations, but
would also inject added uncertainty and unpredictability into the patent system. Such a result would ultimately
unbalance the incentive system upon which the patent laws are based.
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Innovation Extensions
Patent applications are a key indicator of a nation’s commitment to
innovation. While countries such as Asia continue to experience innovation
growth, U.S. patent applications are declining.
Mark R. Abbott et al, Dean and Professor, College of Oceanic and Atmospheric Sciences at Oregon State
University, National Science Board, “Research and Development: Essential Foundation for U.S.
Competitiveness in a Global Economy,” 2008, http://www.nsf.gov/statistics/nsb0803/nsb0803.pdf.
A review of quantitative indicators of the state of U.S. science and engineering in the new Science and
Engineering Indicators 2008 provides some measure of U.S. international standing in R&D. The total 2006
R&D in the U.S. (about $340B) comprised about 2.6% of the Nation’s gross domestic product (GDP). The
ratio of R&D to GDP is a widely used measure of an economy’s R&D intensity. From a high of about 2.9% of
GDP in the early 1960s (after the Sputnik “scare”), the Nation’s R&D expenditures have hovered around
2.5% of GDP in the last decades. With 2.6% of its GDP devoted to R&D, the U.S. ranks seventh among
OECD18 countries, and second among G-719 countries (as it has for the last more than a decade at least).
U.S. funding for R&D has exceeded 50% of the total G-7 nations’ R&D since 1997. In 2002 (the latest
global data available), the U.S. expenditures for R&D were one third of the world-wide total R&D (over
$800B in current dollars).
Countries can be compared over time with respect to contributions to knowledge and innovation using two
indicators of research outcomes: (1) patents, as a measure of a nation’s inventiveness and (2) publications
by authors from the respective nations in peer reviewed journals, as a measure of cutting edge S&E
capabilities.
Patents
The share of patent applications in the U.S. patent office filed by inventors20 residing in the U.S. dropped from 55% in 1996 to 53% in
2005. The percentage drop was largely caused by the increasing filings by Asian inventors. Inventions for which patent protection is
sought in the world’s three largest markets – the U.S., the EU,21 Japan – are called “triadic patent families.” The U.S. has been the
leading source of triadic filings (about 37% of the world share) since 1989, when it surpassed the EU, and its share has continued to
increase. The U.S. position in patent filings and in triadic patents suggests sustained U.S. leadership for inventions.
The Ability to Procure Patents is Key to the US Economy

Patents are, at the slight risk of overstatement, part of the engine that powers our nation’s economic growth. From the
standpoint of technology businesses and their investors, patents are of utmost importance because they provide the
necessary protection for newly developed products or processes. At times, basic inventions protected by patents have
created new industries and given rise to new companies, for example instant photography invented by Polaroid Corporation.
Statistics such as the number of patents granted by the United States Patent and Trademark (PTO) are often cited as a
measure of inventive activity, and therefore an indicator of research and development funding. Obtaining a patent
involves a significant commitment of resources, including efforts by inventors in developing innovations and by patent counsel
drafting and shepherding a patent application through the PTO. An issued patent is not only an indicator that innovation has
occurred, but also that this innovation had enough perceived economic value to justify the time and expense of procurement.
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The Prosperity Of Innovation Relies On the Patent System,
Christopher A. Harkins - Counsel, Brinks Hofer Gilson & Lione, Chicago, Illinois. 2007 Albany Law Journal of Science &
Technology. “FENDING OFF PAPER PATENTS AND PATENT TROLLS: A NOVEL "COLD FUSION" DEFENSE BECAUSE
CHANGING TIMES DEMAND IT.” <http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?
start=2&sort=BOOLEAN&format=GNBFI&risb=21_T4185321428 >
The patent system is the bedrock of innovation, especially in today's global economy... . America's ingenuity continues to fund
our economy, and we must protect new ideas and investments in innovation and creativity. Patents encourage technological
advancement by providing incentives to invent, invest in, and disclose new technology. Now, more than ever, it is important to
ensure efficiency and increased quality in the issuance of patents. n69 What's more, the Patent Reform Act of 2007 seeks to put
"invent" back into "invention" by, for the first time, defining an "inventor" and a "claimed invention." According to the
proposed legislation, the "term "inventor' means the individual or, if a joint invention, means the individuals collectively who
invented or discovered the subject matter of the invention," n70 while the "term "claimed invention' means the subject matter
defined by a claim in a patent or an application for a patent." n71 And even though the legislative reform might lead to a "first-
inventor-to-file" system, the emphasis must necessarily be on the first "inventor" [*425] to file a patent application that offers
the public both a new and useful "invention." n72 As shown above, the United States patent system underscores that the quid
pro quo of obtaining a monopoly for a limited time is for the patentee to promote science by teaching how to "make and use"
the invention as claimed. This is not far from what Abraham Lincoln opined, that the first inventor is not the person who merely
"observes" n73 but the person who, sometimes years later, has "succeeded" n74 in making it work by seeing a valuable "hint" in it.
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Patents Can be Used to Encourage Innovation
OECD, ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT 2004,
http://www.oecd.org/dataoecd/48/12/24508541.pdf
Empirical evidence tends to support the effectiveness of patents in encouraging innovation, subject to some cross-industry
variation. In a series of surveys conducted in the United States, Europe and Japan in the mid-1980s and 1990s, respondent companies
reported patents as being extremely important in protecting their competitive advantage in a few industries, notably
biotechnology, drugs, chemicals and, to a certain extent, machinery and computers. Companies in other industries reported that
patents play a secondary, if not negligible, role as a means of protection for their inventions, as they tend to rely more on alternative
means such as secrecy, market lead, advance on the learning curve, technological complexity and control of complementary assets
(Levin, Klevorick, Nelson and Winter, 1987; Cohen, Nelson and Walsh, 2000).
Patents are Directly Related to R&D in the Renewable Energy Sector

Robert M. Margolis and Daniel M. Kammen, Margolis: Science, Technology and Environmental Policy (STEP) Program,
Woodrow Wilson School of Public and International Affairs, Princeton University Kammen: Energy and Resources Group (ERG),
University of California, Berkeley, CA. Science 30 July 1999: Vol. 285. no. 5428, pp. 690 – 692. <
http://www.sciencemag.org/cgi/content/abstract/285/5428/690>
This Viewpoint examines data on international trends in energy research and development (R&D) funding, patterns of U.S. energy technology patents and
R&D funding, and U.S. R&D intensities across selected sectors. The data present a disturbing picture: (i) Energy technology funding
levels have declined significantly during the past two decades throughout the industrial world; (ii) U.S. R&D spending and
patents, both overall and in the energy sector, have been highly correlated during the past two decades; and (iii) the
R&D intensity of the U.S. energy sector is extremely low. It is argued that recent cutbacks in energy R&D are likely to
reduce the capacity of the energy sector to innovate. The trends are particularly troubling given the need for increased
international capacity to respond to emerging risks such as global climate change.
Patents are key to innovation (better card preferably)

Empirical evidence tends to support the effectiveness of patents in encouraging innovation, subject to some cross-industry
variation. In a series of surveys conducted in the United States, Europe and Japan in the mid-1980s and 1990s, respondent
companies reported patents as being extremely important in protecting their competitive advantage in a few industries,
notably biotechnology, drugs, chemicals and, to a certain extent, machinery and computers. Companies in other
industries reported that patents play a secondary, if not negligible, role as a means of protection for their inventions, as they
tend to rely more on alternative means such as secrecy, market lead, advance on the learning curve, technological complexity
and control of complementary assets (Levin, Klevorick, Nelson and Winter, 1987; Cohen, Nelson and Walsh, 2000).
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The KSR ruling upset the balance of the patent system that has allowed for
innovation over the last 24 years – it is crippling the pace of technology’s
advance.
Westlaw.
Members of this Court have wisely cautioned against imposing by judicial fiat overly strict patentability standards in reaction to random instances of patents of
dubious validity. Jungersen v. Ostby & Barton Co., 335 U.S. 560, 572 (1949) (Jackson, J., dissenting). Petitioners and amici have offered several
examples of anecdotal evidence purportedly showing patents of questionable validity upheld under a suspect application of the
MST test, and sentiments of dissatisfaction with the\ current state of the patent system. That anecdotal evidence and self-
interested promotion, however, fails to show that under the totality of the circumstances, the MST test has harmed or fails to
beneficially advance the patent system. To the contrary, having the MST test has provided a robust patent system where
obviousness challenges must be proven with objective evidence of how one skilled in the art would understand and use
the teachings of the prior art rather than a subjective assessment by a judge or jury of whether the differences between
the claimed invention and the prior art, considered individually, show the claimed invention would have been obvious.
The MST test works especially well with complicated inventions. Concerns about possible mis-application of the test when
applied to simple inventions do not lessen the need for the test or justify rejecting it. One cannot seriously question the rapid
strides technology has made during the last twenty-four years under the carefully balanced incentive provided by the
patent system's promise of limited exclusive rights. Upsetting that balance as the petitioner proposes risks crippling the
pace of technology's advance.
Combining two technologies to form an invention is innovation.

Westlaw.
Merely requiring that one of skill in the art have the capability to combine the teachings of the prior art references fails
to give any consideration to whether one of skill in the art would, without the patent, know to do so. The merits of an
invention can lie in just recognizing that the claimed combination can be made even though in hindsight the invention
was simple and its making well within the capability of one of skill in the art.[FN28] *24 Acknowledging that, and the
consequent need to consider whether the combination would have occurred to one of skill in the art, this Court has explained:
FN28. The poet Milton described that phenomenon over three centuries ago: “The invention all admired, and each how he To
be the inventor missed; so easy it seemed, Once found, which yet unfound most would have thought, Impossible!” Paradise
Lost, Part VI, L. 478-501 (quoted in Gillette Co. v. S.C. Johnson & Son, Inc., 919 F.2d 720, 726 (Fed. Cir. 1990)). [I]t often
requires as acute a perception of the relation between cause and effect, and as much of the peculiar intuitive genius which is
a characteristic of great inventors, to grasp the idea that a device used in one art may be made available in another, as
would be necessary to create the device de novo. And this is not the less true if, after the thing has been done, it appears to the
ordinary mind so simple as to excite wonder that it was not thought of before. The apparent simplicity of a new device often leads
an inexperienced person to think that it would have occurred to any one familiar with the subject; but the decisive answer is that with dozens and perhaps
hundreds of others laboring in the same field, it had never occurred to any one before. The practiced eye of an ordinary mechanic may be safely trusted to see
what ought to be apparent to every one. … As a result of the authorities upon this subject, it may be said that, if the new use be so nearly analogous to the
former one that the applicability of the device to its new use would occur to a person of ordinary mechanical skill, it is only a case of double use; but
if the relations between them be remote, and especially if the use of the old device produce a new result, it may at least involve
an exercise of the inventive faculty. Petitioner's suggested test of merely determining whether one of skill in the art would
have the capability to make the claimed combination - without considering whether there is any evidence to show that one of
skill would have had the motivation to make the combination - fails to consider the standard pronounced in C. & A. Potts of
whether the combination “would occur to a person of ordinary mechanical skill.” It also fails to heed the statute's command
that the invention must be viewed as a “whole.” A necessary component of the “whole” is knowing that elements can be
combined to create the “whole.” The capability of physically combining items or teachings in the prior art does not
show that one of skill in the art would have recognized that the “whole” could even have been made from the prior art.[
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The KSR decision stifled innovation

KAREN J. MATHIS President American Bar Association 2006. BRIEF OF THE AMERICAN BAR ASSOCIATION AS
AMICUS CURIAE SUPPORTING RESPONDENTS. Findlaw
Abandoning the teaching-suggestion-motivation inquiry as urged by the Petitioner would significantly weaken the patent
system by creating a less objective and less predictable methodology for determining patentability. Such a result would stifle
innovation by effectively disqualifying many new technologies from patent protection and by increasing the time and
expense associated with patent procurement. A less objective methodology would also hinder innovation by increasing
the frequency and expense and decreasing the predictability of litigation.
The difference in patent law is slowing down the innovation market.

PARTNERS, EXPANSE NETWORKS, INC., INFLEXION POINT STRATEGY, LLC, INTERDIGITAL COMMUNICATIONS
CORP., IPOTENTIAL, LLC, OCEAN TOMO, LLC, AND ONSPEC ELECTRONIC INC. AS AMICI CURIAE INSUPPORT OF
RESPONDENTS, 2006
Because the proposals urged by petitioner and its amici would undermine the predictability and objectivity that are crucial to a
healthy market for intellectual property rights, amici will explain the significance of those goals, and how the Federal Circuit’s
precedents achieve them. As the American economy comes to depend increasingly on intellectual rather than physical
output, a market is evolving in which highly sophisticated actors buy, sell, invest in, and license intellectual property
rights. A departure from settled standards would stymie that evolving market.
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The Prosperity Of Innovation Relies On the Patent System,
The patent system is the bedrock of innovation, especially in today's global economy... . America's ingenuity continues to fund
our economy, and we must protect new ideas and investments in innovation and creativity. Patents encourage technological
advancement by providing incentives to invent, invest in, and disclose new technology. Now, more than ever, it is important to
ensure efficiency and increased quality in the issuance of patents. n69 What's more, the Patent Reform Act of 2007 seeks to put
"invent" back into "invention" by, for the first time, defining an "inventor" and a "claimed invention." According to the
proposed legislation, the "term "inventor' means the individual or, if a joint invention, means the individuals collectively who
invented or discovered the subject matter of the invention," n70 while the "term "claimed invention' means the subject matter
defined by a claim in a patent or an application for a patent." n71 And even though the legislative reform might lead to a "first-
inventor-to-file" system, the emphasis must necessarily be on the first "inventor" [*425] to file a patent application that offers
the public both a new and useful "invention." n72 As shown above, the United States patent system underscores that the quid
pro quo of obtaining a monopoly for a limited time is for the patentee to promote science by teaching how to "make and use"
the invention as claimed. This is not far from what Abraham Lincoln opined, that the first inventor is not the person who merely
"observes" n73 but the person who, sometimes years later, has "succeeded" n74 in making it work by seeing a valuable "hint" in it.
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Innovation Is A Process That Involves Using Current Technologies. Patents
Require Those Technologies To Be Cited To Show Originality.
Katherine J. Strandburg et al - Associate Professor, DePaul University College of Law. 2006. Berkeley Technology Law
Journal Berkeley,Technology Law Journal Fall. “Law and the Science of Networks: An Overview and an Application to the "Patent
Explosion” <http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?
We now turn to our results for the age dependence of the likelihood that a patent will be cited. Our study of how patent citability
depends on patent age contributes to understanding the way in which innovation proceeds by building on prior technology.
Most studies of the process of innovation reflected in the legal and economic literature have, to render the analysis tractable,
taken a simplified, linear view in which innovation is pictured as sequential or cumulative, each new advance building on a
previous innovative step. In fact, innovation is a much more complicated process involving new advances, combinations of old
technologies, and potentially reaching back into the past to make new uses of technologies that acquire new relevance in light
of some new advance. n124 Our results for how citability depends on age provide a window into this process. As already mentioned, in
the course of our analysis of patent citability, we determined how patent citability depends on a patent's age (in patent numbers). We
noted that the way in which a patent's citability varies with the number of citations it has already received is roughly the same for
patents of all ages. Correspondingly, the way in which patent age affects the likelihood of being cited is nearly the same no matter
how many times a patent has been cited before. Patents that have rarely been cited have a lower overall chance of being cited than
highly cited patents, but the "age profile" of their chance of being cited is about the same. Mathematically, the dependence of citability
on age, which we call A<l>(l), is relatively independent of k, especially at large l and k, as shown in Figure 9 for several values of k.
The observed dependence of citation probability on patent age provides insight into the complicated dynamics of technical innovation.
Not surprisingly, citability peaks at a relatively young age (small l). More interestingly, citability decays unexpectedly slowly for older
patents. n125 For large l, A<l>(l) <diff> l[su'- [beta] '], where [beta] <congr> 1.6. This power law form signifies a long, slow decay -
very old patents are still being cited. The peak in citations relatively soon after issuance likely corresponds to "typical,"
incremental improvements, such as those reflected in linear models of cumulative innovation. [*1341] Such incremental
advances are likely to occur relatively soon after a patent issues. The tail of citations that occur long after issuance no doubt
includes "pioneer"-type patents that continue to influence innovation (and hence continue to be cited) over long periods of
time. However, not all of these late citations are to broad, pioneer patents. The form of A<l>(l) - including the tail of citability long
after issuance - is the same even for patents that have rarely been cited in the past. This means that even patents that have been cited
very rarely or never in the past are sometimes cited long after issuance. Thus, there is no age at which patents can be pronounced
"dead." While most patents that have not been cited shortly after they are issued will never be cited, there are "sleeper" patents that go
without citation for long periods of time, only to reawaken at a later time. If one makes the reasonable assumption that receiving a
citation is some indication of social value, this observation suggests that inventive progress is not simply a matter of steady
accumulation of incremental progress, but a complicated process in which old patents may gain new significance in light of later
advances. The long tail of inventive relevance also underscores the difficulty of predicting the social value of innovations in advance.
A network approach permits us to take into account the multi-dimensional and combinatorial nature of technological progress. Our
age profile is just one simple way to use citation network analysis to probe the innovative process. Social scientists have also begun to
use network measures of patent citations to explore the way in which technological change occurs. n126 From this perspective, one may
view citations as indicators of the ways in which prior technologies have been combined to produce a new invention.
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There Is A Strong Relationship Between The Patent System And Innovation
Understanding the interaction between innovation and the patent system is difficult for many reasons. Increased patenting, for
example, can stem from various causes, including an increased pace of technological change, an increased range of patented
technology due either to expansion of the scope of legally patentable subject matter or to the birth of new fields of technology,
a growing perception of the usefulness of patents as business tools, or the issuance of lower quality patents. Empirical
investigation of the patent system can play an important role in understanding [*1323] how to maintain the appropriate
balance. In what follows, we report the results of a detailed study of the evolution of the patent citation network and argue
that the evolution suggests that the patentability standard has been decreasing. Before presenting our results, we detour to
provide an overview of patent issuance and the meaning of patent citations and discuss how patent data has been used in previous
studies. With that context in place, we then describe our study.
Knowledge Flows And Spillovers Directly Connected To The Patent System
The United States patent system provides a historical record that encompasses much of the history of innovation in this
country and, increasingly, abroad. Records of patent prosecution, patent citations, and patent litigation over many years are publicly
available. The history provided by patent records is incomplete, of course. Many technical advances are either unpatented trade
secrets or unpatentable technical know-how. Moreover, the patent record was historically limited to traditionally industrial
innovations, though the scope of patentable subject matter has expanded to cover an increasingly broad range of innovations
at an increasingly early stage of development. Whatever its limitations, the patent record has long been recognized as a rich
source of data about innovation and innovation [*1326] policy. n90 In the past, the form in which the data were available made
quantitative analysis a difficult and painstaking process and limited the kinds of analyses that could be performed. Recent advances in
computer technology, however, along with the efforts of empirical economists, have rendered a wealth of patent data suitable for
large-scale quantitative analysis. n91 A surge of attempts by economists, social scientists, and legal academics to capitalize on this new
availability has resulted. n92 For the most part, [*1327] that work has applied statistical regression techniques to connect patent
characteristics - such as the number of citations made and received, the number of patent claims, and whether the patent was
renewed; inventor characteristics - such as geographical location and employment context; and, most recently, patent
examiner characteristics - such as length of experience - to financial, economic, and technological indicators. In this way,
commentators have used patent data to investigate knowledge flows and spillovers; n93 to attempt to determine the
characteristics of valuable patents; n94 and to try to understand the role innovation plays in the behavior of various types of
institutions, from universities to small and large firms.
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Overly Stringent Patent Protection Hurts Innovation
Lincoln's factors of fueling interest to the fire of genius also buttress the rationale for purging flawed patents. According to the
Supreme Court, the patent system was carefully crafted such that striking a "balance between the interest in motivating
innovation and enlightenment by rewarding invention with patent protection on the one hand, and the interest in avoiding
monopolies that unnecessarily stifle competition on the other, has been a feature of the federal patent laws since their
inception." n86 As argued in a 2006 dissenting opinion n87 by [*428] Supreme Court Justice Stephen G. Breyer (joined by
Justice John Paul Stevens and Justice David H. Souter), the dissenting justices stated the reason exclusion of abstract "ideas"
from patent protection "is that sometimes too much patent protection can impede rather than "promote the Progress of Science
and useful Arts,' the constitutional objective of patent and copyright protection." n88 Just as the patent system provides
"monetary incentives for invention," the problem arises from patents that impede research by forcing researchers to avoid
"ideas" if patented, leading to "costly and time-consuming" investigations on the Patent Office for issued patents or pending
applications, and prohibitively "raising the costs of using [allegedly] patented information." n89 Thus, patent law balances the
goal of creating incentives to invent while avoiding dangers of overprotection. n90 The dissent's concluding remarks asserted
that, if "the patent is invalid, then special public interest considerations reinforce my view that we should decide the case." n91
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KSR Has A Direct Negative Effect On Innovation And Investment
Joshua D. Sarnoff, Assistant Director, Glushko-Samuelson Intellectual Property Law Clinic, Program on Information Justice and
Intellectual Property, Washington College of Law, American University - 2008 Yeshiva University. Cardozo Arts & Entertainment
Law Journal. “BILCARE, KSR, PRESUMPTIONS OF VALIDITY, PRELIMINARY RELIEF, AND OBVIOUSNESS IN PATENT”
LAW <http://www.lexisnexis.com/us/lnacademic/auth/checkbrowser.do?
ipcounter=1&cookieState=0&rand=0.9821853620093863&bhcp=1>
In reviewing and discussing the KSR case, I seek to demonstrate that the Supreme Court has adopted various substantive
rules of law (triggered by presentation of evidence regarding the nature of the patented invention) that may be used to
disprove the inference of non-obviousness that arises from the presumption of validity. These substantive rules shift to the
patent holder the burdens of production and persuasion in regard to the validity of the challenged patents, and may limit the
evidence that can be used to prove non-obviousness. These substantive rules also should apply to determining validity in the
Patent Office. n23 Establishing the proper rules for determining validity is extremely important. Erroneous decisions regarding
patent validity may have enormous costs to society, as well as to the parties involved, as decisions to enforce invalid patents
may dramatically affect [*1001] sequential innovation and investment.
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Patents Act As Incentives For Investment And Lead To Innovation
Currently, there is no complete fundamental understanding of when scale-free distributions occur. Intuitively, however, it seems likely
that these distributions are possible when scale is not strongly constrained by some form of cost. n44 For example, the network of
World Wide Web hyperlinks [*1313] (which is relatively unconstrained by linkage costs) is approximately scale-free, whereas the
railway system (which is constrained by the costs of building additional track "links") and the power grid (which is constrained by the
cost of wiring and the loss of energy in transportation) are not. n45 An observation of extreme heterogeneity should trigger an
inquiry not only into its effects but also into its causes. It is conceivable, for example, that there is a relation between the well-
known highly skewed distribution of values of technological innovations and a fundamental lack of proportionality between
research investment and research result. If this (highly speculative) premise were correct, it might have important
implications for the use of patent law to provide incentives to invest. Similarly, a very skewed distribution of network
connections which results from some particular combination of legal rules and other norms and constraints might reflect an
underlying skewed distribution of talent or effort, but we should recognize that preferential attachment alone is enough to
produce such a distribution even if all nodes are identical. Depending on whether the skewed distribution of connections is
socially desirable, this recognition may affect the choices of policies to pursue.
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Patents Key to Innovation
Patents lead to innovation and thus increase investor profits
Julie A. Hedlund, Senior Analyst at the Information Technology and Innovation Foundation, a Washington, DC-based technology
think tank, 5/07, http://www.itif.org/files/PatentsPending.pdf
Patent rights encourage innovation by letting inventors temporarily exclude others from making, using, selling or
importing their new, useful, and nonobvious inventions. These rights are valuable because they increase inventors’
profits from investment in research and development (R&D). But in order to foster innovation, patents need to balance the
rights of inventors with public benefits. Moreover, the patent system needs to be timely and accurate, awarding patents
expeditiously for only those inventions that are new, useful, and nonobvious. When the patent system strays from that ideal, it
begins to impose costs on the innovation economy. As noted above there are three main problems now in the patent system:
delay, patent quality, and excessive and costly litigation.
Patents are key to innovation.
Julie A. Hedlund, Senior Analyst at the Information Technology and Innovation Foundation, a Washington, DC-based technology
think tank, 5/07, http://www.itif.org/files/PatentsPending.pdf
Patents aren’t the only way to protect intellectual property. Inventors can use trade secrets, but these work best when it’s not
possible for someone to deconstruct an invention to find out how it works (such as the formula for Coca Cola). They also can
use copyright where patents may not apply. (Some companies may use copyrights, instead of patents, to protect software, for
example.) But patents influence innovation in more economic sectors than any other form of protection. The economic
explanation of the social function of patents is that developing and bringing new technologies to market is good for
society but is expensive to do and easy for imitators to copy. So it makes sense for governments to encourage innovation by
rewarding inventors. One way is to finance research and development, which the United States does with particular areas of
national interest, like defense and energy R&D. Another way is to give inventors a prize. But patents are the most effective
and least expensive method to give inventors a temporary monopoly. For hundreds of years governments have used
patents to spur innovation over other types of awards because they are politically popular, they generally work, and
they even adjust their value according to the value of the invention—a patent for technology that everyone wants to
copy is worth much more than one for an invention that no one wants.
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Patents are sweet for innovation
OECD, 2008, http://www.oecd.org/dataoecd/24/11/25473397.pdf

Intellectual property rights, particularly patents, are increasingly important for science and innovation as they
influence the distribution of financial returns to innovation, as well as the ease with which others can obtain access to
and use new technological discoveries. The number of patents granted worldwide has risen sharply in the past 10 years,
largely due to developments in new technologies, particularly ICT which accounts for nearly half of the increase and now
covers about a third of all patent applications. More than 850 000 patent applications were filed in the US, Europe and Japan in
2002, up from 600 000 in 1992. Patent rights have been strengthened and extended over the past two decades. Although
differences remain between countries and geographic regions, patents now cover software, genetic and business method
inventions, and procedures for registering patents have been made more flexible and less costly, particularly at international
level. The introduction of new governing bodies, usually with more power to enforce rights, such as the World Trade
Organization and the World Intellectual Property Organization, has been coupled with stronger enforcement of patent holders’
rights in the courts.
Jon Dudas Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office,
Washington, DC, USA. 5/08 http://www.iam-magazine.com/issues/Article.ashx?g=7ec06ce7-8c64-4402-9222-f79e3aaaf171
The most fundamental measure of patent quality is validity. At the US Patent and Trademark Office (USPTO), we assess
whether a patent should be granted by determining whether the claimed invention is “new, useful, and non-obvious”. Issuing
quality patents is vital, because they are key to economic growth. Every nation focusing on innovation recognises that
patents are the best way to protect and promote innovation. In the United States, our intellectual property is worth
US$5.5 trillion, and we recognise that this value begins with a highquality patent examination process. The standards of this
process determine the level of trust on the part of the markets. If the markets have faith in the quality of patents being granted,
many of the issues and problems
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Patents Key to innovation
Major factor in success of businesses is innovation and patents.

Joseph Wright is the vice president of technology transfer for The Siouxland Initiative. Published in the Sioux City Journal
2/3/2008 http://www.siouxlandchamber.com/technology_innovation/documents/MicrosoftWord-
InnovationisKeytoLocalCompanies_Revised_.pdf
It’s no secret; the major factor in any region’s long-term economic development and growth is the expansion of
companies already located in the area. With so much attention paid to the efforts of economic developers to recruit new
companies, it is no wonder that we occasionally overlook the fact that the vast majority of new jobs in a community are created
by companies already located in that community. Despite the significant amount of attention new companies generate when
coming to town, efforts to help local companies grow and expand are critical to a well-balanced economic development
strategy. The future success of local companies depends on their ability to stay competitive in the global economy and
produce products that provide an edge within a given industry. Continued innovation is critical to companies wishing to
maintain that edge. In Siouxland, some of the most dynamic, growth-oriented, companies are successful because they
innovate. Highlighted below are a few companies that are pacesetters because of their ability to innovate. BPI, who just
announced a $400 million expansion, has over thirty issued patents. Patents are key indicators of a company’s
innovative efforts. BPI’s pioneering research and development has resulted in numerous industry awards. BPI utilized beef
trimmings to create a product that has previously unrealized market value. Their efforts, past and present, are the essence of
innovation. Another example is Phillips Kiln. Phillips also holds several patents, has clients around the world, and is
expanding rapidly. They have the ability to precisely measure and calibrate massive kilns using technology they developed
internally. Their services are in demand globally because they have developed technologies that are cutting edge within
their industry. Jolly Time Pop Corn was visionary when they developed their microwavable popcorn. As a direct result of
their innovation and awareness of market trends, they were able to identify and produce a product that ensured the company’s
continued success. A few years ago, Missouri Valley Steel was fighting to remain competitive in the demanding international
market of steel construction and fabrication. In an effort to cut costs and increase efficiency, they developed a steel cutting
table that decreased fabrication and cleanup time. They discovered that in their efforts to do things better and faster, the
very device they developed to meet these objectives was unique and extremely valuable in its own right. They filed
patents for the new device, and began to market it. This innovative product has been an enormous success and
contributed to the company’s ability to excel in an industry where so many American steel companies have faltered.
Lite-Form Technologies has over twenty issued patents in its portfolio. Lite-Form continues to grow and has established
a global footprint. Never completely satisfied with their existing product offerings, they have stayed ahead of the competition
by focusing on product improvement and new product development. At a recent international trade show, Lite-Form
distinguished themselves with products clearly superior to their competition. This is hard-earned recognition directly
attributable to their relentless research and development efforts. All these successful companies have one thing in common;
they innovate.
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Patents Key to innovation
Patents key for innovation
Deborah Wince-Smith, January 31, 2006, Council on Competitiveness Applauds President for Focusing on
Innovation; New Economic Strategy Will Benefit All Americans, lexis
The Council on Competitiveness, a national organization dedicated to elevating an action agenda that drives economic
competitiveness in the United States, applauded President Bush for recognizing the innovation imperative as a first tier
economic priority in his State of the Union address. "Just over a year ago, the Council raised a clarion call for a national
innovation strategy, and we are grateful to the President for his vision and leadership to make that goal a reality," said Deborah
Wince-Smith, president of the Council on Competitiveness. "As stated in the Council's report, Innovate America, our long
term competitiveness will depend on our ability to educate the next generation of innovators, invest in the cutting edge
of science and develop and deploy new technologies so that the United States can maintain its true competitive edge and
global leadership in innovation. We hope the budget will reflect this commitment to a new 21st century economic strategy
that will benefit all Americans." "Discovery, ingenuity and innovation have always been at the forefront of the United States'
economic and technological leadership," said Intel Chairman Craig Barrett, who also serves as co-chair of the National
Innovation Initiative Leadership Council. "Unfortunately recent indicators show that we are at risk of losing our
competitive edge. The business community commends the President for making American competitiveness a national goal.
We urge government leaders to take immediate bipartisan action to ensure U.S. innovation leadership, including a renewed
emphasis on math and science education, additional investment in basic research and incentives for business investment in
innovation that creates new jobs." "The president is right on target when he says that innovation is the key to our economic
future," said William R. Brody, president of The Johns Hopkins University and co-chair of the National Innovation Initiative
Leadership Council. "The calculus is simple: Knowledge drives innovation, innovation drives productivity and
productivity drives economic growth. To compete in the global economy, we must make sure that we do the basic
research -- in both the physical and life sciences--to produce the knowledge that leads to innovation, productivity and
growth." "I am hopeful that the President's proposals will be greeted enthusiastically in the Congress given the recent
introduction of the National Innovation Act by Senators John Ensign and Joseph Lieberman and the PACE Acts by Senators
Lamar Alexander and Jeff Bingaman," said Wince-Smith. "These bills enjoy the bipartisan support of over half the Senate. It is
gratifying to see so many policy makers in both the public and private sectors recognizing the importance of an innovation
agenda and proposing solutions to move in that direction."
Patents also foster competition amongst companies fostering innovation
Patent Hawk, Patent hawk LLC patents cosulting system, 2/5/05 10:00 PM,
http://www.patenthawk.com/blog/2005/05/patent_economics_part_6_the_im.html
The value of a patent grant inspires developing workarounds - substitutes. Hence, the incentive to design around a patent
is a corollary to the incentive to commercialize. A patent taunts a competitor to circumvent infringement by developing
substitutes, which themselves may be patentable. The incentive to workaround thus catalyzes innovation and
strengthens the patent system, as companies race to develop patent portfolios, driven for defensive reasons, as
statements of company technical prowess, and as accumulation of wealth, as patents are themselves valuable
commodities. The incentive to workaround levels the patent playing field. Though it happens regularly, prima facie it
seems rather silly for a company to sue another company for patent infringement when it could readily suffer
countersuit - better to negotiate a settlement than sue. Outright stupidity aside, that companies with patent portfolios sue
each other instead of negotiating speaks of either: 1) an inability to valuate patent portfolios, or 2) an inability or unwillingness
to negotiate. It quite common for a patent holder to be forced to litigate because an infringer refuses to negotiate. This can be
the case when the infringer has no countersuit potential, and foolishly thinks that it has nothing to lose by denial.
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Patents foster inventiveness
Patent Hawk, Patent hawk LLC patents cosulting system, 2/5/05 10:00 PM,
http://www.patenthawk.com/blog/2005/05/patent_economics_part_6_the_im.html
As described in Part 3 of this series, without patents, inventors would face a dilemma securing sufficient capital to exploit
their inventions. Under this theory, a potential inventor might not even risk the cost of invention unless assured
exclusive use of the invention, at least for a duration. There can be considerable costs to the invention process, which
often involves repetitious trial & error, and testing, all of which require facilities, labor, and supplies. Development of new
drugs, for example, cost several million dollars. Even toy inventions can consume tens of thousands of dollars in the process of
perfecting a child's enjoyment. Patents offer a means to recoup such costs. There are objections to this theory. The patent
grant may be too much of an incentive, causing too many firms to invest in research and development, resulting in duplicate
efforts. The result may be slightly earlier invention, but at a substantially higher overall cost. Duplicative efforts may,
however, lead to distinct alternatives. Consider development of two drugs for the same disease, but with different side effects.
Having different drugs may help patients who would suffer from the side effects if only one treatment were found, thus
offering a choice where otherwise none may be available. Another objection is that a patent awards too much to the inventor.
After all, invention is as inevitable as the need; the issue of invention is only one of timing. But, as seen by the inventor's
dilemma, without a patent system, incentive to invent may be so retarded that invention cannot be considered inevitable
in absence of patents. History suggests as much, in times when would-be inventors were not assured of being able to
profit from their inventions.
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Patents better than secrecy
Patents are better than secrecy.
Anthony Arundel, qual need to be found, Prepared as part of the project “Innovation Policy in a Knowledge-Based
Economy”commissioned by the European Commission
The best policy response to these trade-offs is made more complex by the fact that IPRs are
not the only appropriation method available to firms. The policy question then becomes: how
much IPR protection is optimal, given that firms can also appropriate their investments in
innovation through secrecy, lead time advantages, technical complexity, complementary
services, etc? There is no reason to strengthen IPRs when other appropriation methods
provide an adequate incentive to innovate. Doing so would simply increase the ability of firms
to extract monopoly profits without providing any social benefits.
Alternatively, are there situations in which the public interest would be better served if firms
used patents rather than other appropriation methods? For example, the use of secrecy as an
alternative to patents could decrease public welfare by reducing the flow of ideas among
firms, thereby reducing the overall rate of innovation. The public interest could be better
served by encouraging firms to use patents instead of secrecy, since the former require
information disclosure. Furthermore, a dynamic rather than a static analysis might suggest
that excess profits, if reinvested in additional innovation, could provide greater public benefits
over the long term.
The role of patents versus other appropriation policies is not only an issue of public versus
private interests. The exploitation of non-IPR appropriation strategies can be an essential
component of the ability of firms to compete. For instance, a competitive strategy that places
undue emphasis on patents could result in commercial failure if it leads to the neglect of
complementary practices such as developing lead-time advantages, frequent technical
improvements, skilful marketing, and after-sales support services.
37
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Patents = incentives
Patents are key as incentives
Joseph A. DiMasi, Ph.D.* and Henry G. Grabowski, Ph.D.** *Tufts Center for the Study of Drug Development, Tufts University
**Department of Economics, Duke University June 25, 2004, http://www.who.int/intellectualproperty/news/en/Submission3.pdf
However, the rationale for patents needs to be understood in a dynamic context. In industries where patents are
important, as is the case with pharmaceutical products, innovators would lack the incentive to innovate if there were no
patent protection, since the volumes and prices that they would receive would not be sufficient to cover the costs of
discovering and developing innovations. The dynamic benefits created by patents on pharmaceuticals can, and almost
surely do, swamp in significance their short-run inefficiencies (Philipson and Mechoulan, 2003).
38
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Only patents Solve
Government Initiated R&D or Prize Money cannot inspire innovation equivalent

to the patent system.
Even though a world in which there are no patent protections for pharmaceutical products, and no other means by which
innovators can expect to recoup their R&D costs, is clearly inferior to a world in which there are meaningful
intellectual property protections, one can consider whether there are other means to achieve a given level of innovation
with fewer inefficiencies than those supposedly engendered by a patent system. This is an issue that has been debated for
as long as patents have existed. There are two major alternatives to patents that have been discussed in the literature. One is
a system in which successful innovative effort is compensated with a prize (award) upon completion of the innovation,
or after some relatively short time on the market, and the innovation is subsequently put in the public domain. The other main
approach is one in which a government authority procures R&D effort (through, for example, contract grants). Completed
innovations are then used by the procurer or put in the public domain. There have been real world cases that illustrate the
operation of the two approaches. For example, the old Soviet Union rewarded inventers with prizes, and governments
frequently use a procurement system for national defense R&D. In the case of the Soviet Union, the rewards to innovators
were far less than the values of the innovations, and the record of innovation was not impressive (Scherer, 1980, p.458).
In the case of government contracting for defense systems, the informational problems that would severely limit the
ability of governments to properly assess the potential benefits of directed R&D for most kinds of product innovations
are mitigated substantially since the consumer in these cases is the government agency itself. The R&D grants process is
also generally beset with numerous issues resulting in perverse incentives that are discussed further below.
39
Patents Aff
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DDI 2008 BQ
KSR Decision Hurt Innovation

KSR Had A Direct Negative Effect On Innovation And Investment
Joshua D. Sarnoff, Assistant Director, Glushko-Samuelson Intellectual Property Law Clinic, Program on Information Justice and
Intellectual Property, Washington College of Law, American University - 2008 Yeshiva University. Cardozo Arts & Entertainment
Law Journal. “BILCARE, KSR, PRESUMPTIONS OF VALIDITY, PRELIMINARY RELIEF, AND OBVIOUSNESS IN PATENT”
LAW <http://www.lexisnexis.com/us/lnacademic/auth/checkbrowser.do?
In reviewing and discussing the KSR case, I seek to demonstrate that the Supreme Court has adopted various substantive
rules of law (triggered by presentation of evidence regarding the nature of the patented invention) that may be used to
disprove the inference of non-obviousness that arises from the presumption of validity. These substantive rules shift to the
patent holder the burdens of production and persuasion in regard to the validity of the challenged patents, and may limit the
evidence that can be used to prove non-obviousness. These substantive rules also should apply to determining validity in the
Patent Office. n23 Establishing the proper rules for determining validity is extremely important. Erroneous decisions regarding
patent validity may have enormous costs to society, as well as to the parties involved, as decisions to enforce invalid patents
may dramatically affect [*1001] sequential innovation and investment.
The Pre-KSR Patent System was an incentive for the creation of innovative
inventions.
RESPONDENTS, 2006
Innovation is the lifeblood of the American economy, and the patent system fosters it by creating incentives for the
creation, disclosure, and ultimate commercialization of inventions. The protections afforded by the grant of property rights
in inventions enable small entities like the undersigned amici to survive, compete, and innovate. For the system to work
properly, however, patentability at the procurement stage and patent validity after issuance must be predictable. If
there is no clear understanding of what is and is not patentable, investment in innovation will be chilled, and the ready
transfer of technology will be inhibited. In fact, the basic purpose of 35 U.S.C. § 103 was to create “uniformity and
definiteness.” Graham v. John Deere Co., 383 U.S. 1, 17 (1966). To the chagrin of industry, that purpose was undermined by
developments that followed this Court’s decision in Graham and helped prompt the creation of the Federal Circuit in 1982.
Also crucial to any regime of patentability is that the determination not be based on hindsight. The government and other
amici downplay this phenomenon, but it is in the nature of many important technical advances to appear obvious and
even inevitable in retrospect. The motivation-to-combine standard achieves these crucial goals, and does so by
rendering the obviousness determination as objective as reasonably possible. The standard, which is consistent with
international norms and rooted in decisions that long predate even Section 103, is precisely the sort of workable refinement that
lower courts are supposed to develop in every area of the law. The standard, moreover, has never been as inflexible as
petitioner and its amici suggest. And even if it were, the rational approach would be not to jettison the standard and start from
scratch but rather to emphasize that implicit as well as explicit motivations satisfy the standard. If the existing standard were
abandoned in favor of the proposals\ urged by petitioner and its amici, then, to the detriment of American competitiveness,
countless deserving inventions would never have been protected, and, in the future, will never be protected. Relatedly,
petitioner’s amici’s proposals would wreak havoc in the business world by calling into question enormous numbers of issued
patents and inviting endless litigation over patent validity.
40
Patents Aff
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DDI 2008 BQ
Competiveness Extensions
Patents Improve Competition by Enhancing Market Entry

Nevertheless, patents can also have a positive impact on competition when they enhance market entry and firm creation. Not
only is there evidence of small companies being able to assert their right in front of larger ones thanks to their patent
portfolio, but patents may also be a decisive condition for entrepreneurs to obtain funds from venture capitalists (Gans, Hsu
and Stern, 2002). Moreover, patents may enhance technology diffusion. Patenting means disclosing inventions which might otherwise
be kept secret. Industrial surveys show that the reluctance of firms to patent their inventions is primarily due to the fear of providing
information to competitors. This has been confirmed in the OECD/BIAC survey on the use and perception of patents in the business
community, sent to firms in OECD countries in 2003 and in which respondents indicated their intensive use of patents as a source of
information (Box 2; Sheehan, Guellec and Martinez, 2003). Patents also facilitate transactions in
41
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DDI 2008 BQ
Renewable Energy Tech Low - Germany

The US is lagging behind Germany in renewable energy tech.
Stephen Leahy, Wired Magazine, 6/4/04
The Philippines and China announced ambitious renewable-energy targets at a major international conference on clean energy
in Bonn, Germany, this week. However, the United States, Canada, Australia and Japan resisted the whole idea of targets and
timetables.
German Environment Minister Juergen Trittin argued that renewable energy helps countries avoid conflicts over oil, protects
the climate, reduces air pollution and creates jobs. Germany is the world's leading producer of renewable energy, employing
more than 120,000 people in the industry, said Trittin.
The European Union, before it expanded to include 10 nations on May 1, pledged to tap renewable sources to meet 22.1
percent of its energy needs by 2010.
China committed to producing 20 gigawatts -- enough power for about 20 million average California homes -- from wind by
2020, said Janet Sawin, a renewable-energy researcher at the Worldwatch Institute.
"It's extremely important for countries to set targets, that's how the Europeans have taken the lead," Sawin said at the
Renewables 2004 conference in Bonn.
At one time the United States was the world leader in renewable-energy production and technology, but it has fallen behind
countries like Germany, Norway, Spain and Britain.
Given security issues, the high cost of oil, dependence on foreign energy imports, pollution problems and global warming, it's
bewildering that the federal government hasn't set any targets for renewables or put effective energy policies in place, Sawin
said.
While wind has become fairly cost-competitive in the energy market, strong federal policies that encourage renewable
production are needed to create long-term markets for green energy so companies will invest in the technology. Said Sawin,
"People should remember that conventional energy like coal has its own subsidies and comes with hidden costs like air
pollution."
It's also important for the United States to develop renewable energy technology to assist the developing world. Approximately
2 billion people don't have access to electricity mainly because they don't have oil or coal resources nearby and can't afford to
import it. Locally produced green energy is their best energy option, Sawin said.
42
Patents Aff
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DDI 2008 BQ
Renewables Good/Investment Key

Renewable energy can overcome environmental challenges, but more
investment is needed.
Staffan Jacobsson and Anna Bergek, Prof of Science & Technology at Chalmers, Industrial and
Corporate Change, Vol 13, No. 5, 2004, p. 815-16
Fossil fuels are the dominant source of energy in the world, contributing about 80% (91,000 TWh) of the total primary
energy supply and 64% (9400TWh) of the electricity generation in1999. This dominance is associated with clear
environmental and climate challenges. A wider use of renewable energy technology is seen as one way of meeting these
challenges. For instance, the European Union aims at increasing the share of renewable energy in the supply of electricity from
about 14% in 1997 to 22% by 2010 (Lauber, 2002). To obtain and surpass this share, a range of renewable energy technologies
need to be diffused.
Large-scale hydropower and combustion of different types of biomass currently provide the bulk of the energy supplied from
renewable energy sources. In 1999, these supplied roughly 2600 and 12,600TWh (160TWh of electricity; UNDP, 2000) 1 of
primary energy respectively (IEA, 2001). In addition to these, the ‘new’ renewables—
wind turbines, solar cells and solar collectors—are now diffusing at a quite rapid rate
(see Appendix Table A1).
In the 1990s, the global stock of wind turbines increased by an average of 27% per annum, leading to an electricity supply of
about 56TWh in 2001.The stock of solar cells grew by 22% per annum in the same period, producing roughly 2TWh of
electricity in 2001, whereas the stock of solar collectors in Europe increased by 12% per annum, supplying about 6TWh of heat
in 2001.
Whereas the share of these technologies in the global energy supply is marginal at present (less than 0.5% of the 15,000 TWh
of electricity generated in the world), their potential is considerable. There are visions of wind power accounting for 10% of the
world’s electricity supply and of solar cells supplying 1% by 2020 (EWEA et al., 1999;
Greenpeace and EPIA, 2001). The real issue is no longer the technical potential of these (and other) renewable energy
technologies, but how this potential can be realized and substantially contribute to a transformation of the energy sector. The
purpose of this paper is to add to the current (energy) policy debate by synthesizing a number of studies on the development
and diffusion of renewable energy technology in Sweden, Germany and the Netherlands (Andersson and Jacobsson, 2000;
Jacobsson and Johnson, 2000; Johnson and Jacobsson, 2001; Bergek, 2002; Bångens and Sinhart, 2002; Bergek and Jacobsson,
2003; Jacobsson et al., 2004).
43
Patents Aff
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DDI 2008 BQ
Renewable Energy = Investors Like
The prospect of a legitimate renewable energy industry has investors licking
their chops.
Will Rowley, adapted from a Douglas-Westwood study, Oil & Gas Journal, “Hype aside, renewable energy emerging as viable long-
term energy industry business opportunity,” 10/22/01, http://www.lexisnexis.com/us/lnacademic/returnTo.do?
returnToKey=20_T4159349877
Renewable energy is a significant global industry with an annual capital expenditure of over $ 15 billion. Contrary to the belief of
many, the majority of this expenditure is for conventional industrial and power generation equipment, such as turbines, generators,
switchgear, control systems, cabling, monitoring systems, etc.
Major companies such as ABB Group, GE, and Paris-based Alstom have been increasingly active across many of the renewable
sectors and quietly building market share. The supply of commercial off-the-shelf equipment by companies such as these has been one
of the key fundamentals in reducing the cost of renewable energy.
Many equipment suppliers now view the industry not as an embryonic niche but as a "normal" business sector. This step change in
approach also means that much of the technological development within the industry is now coming from industrial research and
development rather than academia. It is the engineers that are now putting a commercial reality into the world of renewable energy.
The commercialization of renewable energy is gradually feeding into the energy industry's planning process. It has been noticeable
that energy companies are not only more optimistic about the renewables sector but that medium and long-term cross-sector planning
is developing.
The industry is moving away from a project-by-project basis and into output planning within an integrated strategy.
Financiers and investors who are looking for a balance of projects and cross-sector risk management are also seeking to include
renewables within their investment portfolios.
44
Patents Aff
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DDI 2008 BQ
Long-term Focus Key
Policy making in the energy sector must focus on the long-term – it’s the only
way insure transformation.
Staffan Jacobsson and Anna Bergek, Prof of Science & Technology at Chalmers, Industrial and
Corporate Change, Vol 13, No. 5, 2004, p. 816
Before we proceed, we need to point to three features of the energy sector that characterize the larger context in which we must
place any analysis of how policy may influence the transformation process. First, the energy system is huge. Even with
continued high growth rates over the next two decades, wind and solar power may only begin to replace the stock of
conventional energy technologies well after 2020 (see Appendix Table A2). Yet a transformation of the energy sector post
2020 rests on a range of policy initiatives taken today and over the course of the preceding decades. Policy making must
therefore be conducted with a very long-term perspective.
45
Patents Aff
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DDI 2008 BQ
US Competiveness Low
Current trade deficits proves US isn’t competitive in the tech field.
Another measure of competitiveness is the U.S. international trading position in high technology industries.
The U.S.
trading position in technology-oriented services remains strong as evidenced by the continued surplus in
trade of computer
software and manufacturing know-how.27 By current measures, the U.S. trade balance across all high
technology sectors
significantly declined over the last decade. This could translate into the loss of manufacturing jobs28 in high
technology
industries, although the data are insufficient to measure the impact on employment over time.
Of the five high technology manufacturing industries identified by the OECD, only that for aerospace had a
large positive
balance of trade in 2005. The scientific instruments industry is relatively balanced with regard to trade,
and the other
three high technology manufacturing categories are negative. The total U.S. trade balance in high
technology shifted from
surplus to deficit in the late 1990s, with a deficit of $32B in 2000, increasing to $135B in 2005. This
increase primarily
reflects increases in the deficits with Asia.
In contrast to the manufacturing category, the U.S. trade balance in royalties and fees for intellectual
property between
affiliated and non-affiliated companies has continued a sustained surplus over the years.29 Licensing fees
and royalties
largely reflect past innovations, sometimes quite distant past, and are not good measures of the current
state of research or
accurate predictors of future intellectual property revenues from the research.
The Japanese outperform their US counterparts in number of patents for low-

emission vehicles.
Nick Johnstone and Ivan Hascic, OECD Environment Directorate, OECD Observer, Eco-innovation, policy
and globalisation: Making a world of difference, 12/07,
http://www.oecdobserver.org/news/fullstory.php/aid/2342/Eco-
innovation,_policy_and_globalisation:_Making_a_world_of_difference.html
This is welcome news for governments, who see eco-innovation as a means to achieve both key environmental objectives and create
competitive business conditions for their domestic firms. Domestic inventors have typically dominated patenting activity in most large
economies and for most technologies. For example, it is no surprise that Japanese inventors are responsible for 86% of vehicle
emission abatement patents deposited in Japan. However, when it comes to patents for the same technologies deposited in the United
46
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DDI 2008 BQ
States, the Japanese also take first place, outperforming their US counterparts! Indeed, in general the data show that the marketplace
for eco-innovation is becoming more global, as inventions originating in one country are diffused throughout the world economy.
47
Patents Aff
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DDI 2008 BQ
US Competiveness Low
Major renewable energy markets are now primarily overseas – the US needs a
strong, innovative domestic market to regain int’l stature.
Eric Martinot, Center for Resource Solutions, “RENEWABLE ENERGY POLICIES AND MARKETS IN
THE UNITED STATES,” 2005, p. 24, http://www.resource-solutions.org/lib/librarypdfs/IntPolicy-
RE.policies.markets.US.pdf
Second, the wind and solar industries are constrained by the fact that the major renewable energy markets
are now overseas, particularly in Europe and Japan. It is more difficult to develop a strong domestic
industry without a strong domestic market. The United States missed many opportunities in the 1990s to
remain the world leader in the renewable energy industry and now is suffering the consequences.
Nevertheless, the domestic solar industry continues to grow, supplying both domestic and international
markets. The domestic wind power industry could also continue to grow, but the domestic market is
becoming increasingly constrained by regulatory problems with transmission access and continued
uncertainty over the future of the federal production tax credit (PTC) beyond its expiration in 2005.
48
Patents Aff
PMA
DDI 2008 BQ
Renewable Energy Low
Despite its benefits, the US has been slow to adopt renewable energy
technology.
Donald L. Klass, phD of Barrington, Energy Policy, “A Critical Assessment of Renewable Energy Usage in the
USA,” Vol. 31, March 2003, p. 353-367, http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6V2W-45Y6FXB-
1&_user=4257664&_coverDate=03%2F31%2F2003&_rdoc=1&_fmt=&_orig=search&_sort=d&view=c&_acct=C000022698&_vers
ion=1&_urlVersion=0&_userid=4257664&md5=2a93037157abd5f2dff087fc7a66fd9f#m4.cor*
Many industrialized countries started intensive research programs in the early 1970s to develop renewable energy resources. The
technologies targeted were active and passive solar energy installations for residential and commercial buildings; photovoltaic, wind,
and ocean systems for the generation of electricity; water splitting for hydrogen fuel production; and biomass, which consists of all
energy-containing waste and virgin forms of non-fossil carbon, for conversion to heat, steam, and electricity, and solid, liquid, and
gaseous fuels. Successful commercialization of these indigenous, non-fossil energy resources was expected to reduce non-renewable
fossil fuel usage, to stimulate regional economic development and employment, to gradually eliminate adverse climate changes
attributed to fossil fuel consumption, to help achieve national energy security, and to reduce a substantial portion of the increasing
trade deficits of some nations caused by the necessity to import oil. Renewable energy utilization would seem to address many of the
security, environmental, and energy independence problems encountered since the Fossil Fuel Era began near the end of the 19th
century.
The benefits of clean, renewable energy and fuels are evident, yet the displacement of fossil fuel usage in the USA by renewable
energy resources has occurred at a very low rate over the last 30 years. An integrated, large-scale, renewable energy industry has not
been realized in modern times despite the major expenditures made to develop and scale-up renewable energy technologies. The
closest analog to this type of industry in the USA is the fuel ethanol business. The bulk of US fuel ethanol capacity is currently based
on corn feedstocks, but total production only satisfies a small fraction of the national motor fuel demand.
There are a number of reasons why commercial renewable energy resources have not been widely available—the stand-alone
economics have usually been unfavorable, financing has been difficult to obtain for first-of-a-kind processing systems and plants, the
infrastructure for delivery and distribution is lacking, and the competition from fossil energy and fuel systems established over many
years is strong. With the passage of time, however, an unexpected business climate has been created that should drive the growth of
the renewable energy industry. Unfortunately, the complexity of the energy economy of the USA has tended to shroud the events that
led to this situation.
49
Patents Aff
PMA
DDI 2008 BQ
Innovation Key – Int’l Competitiveness
The global economy is defined by innovation, and the U.S. must remain at the
forefront to ensure economic competitiveness, jobs, and investment. But the
U.S. is falling behind – businesses are pumping money into overseas R&D.
University, National Science Board, “Research and Development: Essential Foundation for U.S. Competitiveness in a Global
Economy,” 2008, http://www.nsf.gov/statistics/nsb0803/nsb0803.pdf.
Innovation is a key to economic competitiveness and the technological breakthroughs that improve our lives. Basic research
fuels technological innovations and is critical in fostering the vitality of the U.S. science and technology enterprise and the
growth of highly-skilled jobs. The scientific and technological advances that have led to our Nation’s remarkable ability to
create new industries and jobs, improve the standard of living for people, and provide sophisticated technology that ensures our
national security can be traced back to the outcomes of basic research.
Although industry funds two-thirds of U.S. R&D, the majority of basic research is conducted by research universities, and the
U.S. Government has long recognized the importance of public support for these institutions. The Federal Government
established the basis for the Nation’s land grant institutions through the Morrill Acts in the second half of the 19th century.
During World War II, the wartime success of the partnership between universities and the Federal Government through the
Office of Scientific Research and Development (OSRD) led to a proposal – requested by the President – from the head of
OSRD for public funding for research, specifically basic research, in academic institutions and research institutes. Such
funding would encourage the creation of knowledge and employ science and engineering (S&E) for discovery and innovation
—and thereby expand national economic growth, increase employment, and improve the quality of life. This proposal
ultimately led to the creation of the National Science Foundation (NSF)
Through its support of entities that fund basic research, the U.S. Government helps underwrite our national infrastructure for
science and engineering R&D and thereby the global preeminence of the U.S. in S&E innovation. Over time, the Federal
Government support for R&D, and the related important efforts of industry, have grown into a complex and changing web.
Given the impacts on the national innovation infrastructure of changes in investment patterns, it is imperative that patterns and
trends of R&D investments be monitored.
Extending beyond U.S. borders, dramatic changes have occurred that have led to a new global economy operating in ways not
envisioned even several decades ago. As with our own Nation, innovation and its hand maiden, R&D, is driving the global
economy, and we are seeing more nations recognize this by creating their own version of U.S. research institutions and
infrastructure. U.S. businesses are taking advantage of the global markets and resources, and are increasing their support for
research and R&D infrastructure outside the U.S. At the same time, industry support for its own U.S. basic research has been
fairly stagnant in this century, and its support to academic basic research in the U.S. has remained at most flat, and declined in
share of support for academic R&D to a level not seen in more than
2 decades. The rapid changes taking place internationally increase the urgency of understanding and monitoring where our
Nation stands in its R&D competitiveness, the direction of trends related to competitiveness in high technology, and what
critical information may be lacking that would provide more accurate assessments of the
Nation’s standing and outlook.
50
Patents Aff
PMA
DDI 2008 BQ
US Innovation Key – Economy/Competitiveness
US energy leadership is lagging – renewable energy innovation is key to

international competitiveness.
Energy: A Viable Choice, 12/01 [http://rael.berkeley.edu/files/2001/Herzog-Lipman-Edwards-Kammen-RenewableEnergy-
2001.pdf]
The United States has lagged in its commitment to maintain leadership in key technological and industrial areas, many of
which are related to the energy sector. The United States has fallen behind Japan and Germany in the production of
photovoltaic systems, behind Denmark in wind and cogeneration system deployment, and behind Japan, Germany, and Canada
in the development of fuel-cell systems. Developing these industries within the United States is vital to the country’s
international competitiveness, commercial strength, and ability to provide for its own energy needs.
We can’t be complacent – innovation is key to economic security and overcome

international obstacles.
Committee on Science, Engineering, and Public Policy, “RISING ABOVE THE GATHERING STORM:
Energizing and Employing America for a Brighter Economic Future,” 2007, p. 12-13
http://books.nap.edu/openbook.php?record_id=11463&page=2
The committee believes that its recommendations and the actions proposed to implement them merit serious consideration if we are to
ensure that our nation continues to enjoy the jobs, security, and high standard of living that this and previous generations worked so
hard to create. Although the committee was asked only to recommend actions that can be taken by the federal government, it is clear
that related actions at the state and local levels are equally important for US prosperity, as are actions taken by each American family.
The United States faces an enormous challenge because of the disparity it faces in labor costs. Science and technology provide the
opportunity to overcome that disparity by creating scientists and engineers with the ability to create entire new industries—much as
has been done in the past.
It is easy to be complacent about US competitiveness and preeminence in science and technology. We have led the world for decades,
and we continue to do so in many research fields today. But the world is changing rapidly, and our advantages are no longer unique.
Some will argue that this is a problem for market forces to resolve—but that is exactly the concern. Market forces are already at work
moving jobs to countries with less costly, often better educated, highly motivated workforces and friendlier tax policies.
Without a renewed effort to bolster the foundations of our competitiveness, we can expect to lose our privileged position. For the first
time in generations, the nation’s children could face poorer prospects than their parents and grandparents did. We owe our current
prosperity, security, and good health to the investments of past generations, and we are obliged to renew those commitments in
education, research, and innovation policies to ensure that the American people continue to benefit from the remarkable opportunities
provided by the rapid development of the global economy and its not inconsiderable underpinning in science and technology.
51
Patents Aff
PMA
DDI 2008 BQ
US Econ Declining
US economic leadership is declining in the wake of int’l increases in science and technology – more
innovation is needed.
Energizing and Employing America for a Brighter Economic Future,” 2007, p. 3
Having reviewed trends in the United States and abroad, the committee is deeply concerned that the scientific and technological
building blocks critical to our economic leadership are eroding at a time when many other nations are gathering strength. We strongly
believe that a worldwide strengthening will benefit the world’s economy—particularly in the creation of jobs in countries that are far
less well-off than the United States. But we are worried about the future prosperity of the United States. Although many people
assume that the United States will always be a world leader in science and technology, this may not continue to be the case inasmuch
as great minds and ideas exist throughout the world. We fear the abruptness with which a lead in science and technology can be lost—
and the difficulty of recovering a lead once lost, if indeed it can be regained at all.
The committee found that multinational companies use such criteria3 as the following in determining where to locate their facilities
and the jobs that result:
*Cost of labor (professional and general workforce).

*Availability and cost of capital.
*Availability and quality of research and innovation talent.
*Availability of qualified workforce.
*Taxation environment.
*Indirect costs (litigation, employee benefits such as healthcare, pensions, vacations).
* Quality of research universities.
*Convenience of transportation and communication (including language).
*Fraction of national research and development supported by government.
*Legal-judicial system (business integrity, property rights, contract sanctity, patent protection).
*Current and potential growth of domestic market.
*Attractiveness as place to live for employees.
*Effectiveness of national economic system.
Although the US economy is doing well today, current trends in each of those criteria indicate that the United States may not fare as
well in the future without government intervention. This nation must prepare with great urgency to preserve its strategic and economic
security. Because other nations have, and probably will continue to have, the competitive advantage of a low wage structure, the
United States must compete by optimizing its knowledge-based resources, particularly in science and technology, and by sustaining
the most fertile environment for new and revitalized industries and the well-paying jobs they bring. We have already seen that capital,
factories, and laboratories readily move wherever they are thought to have the greatest promise of return to investors.
52
Patents Aff
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DDI 2008 BQ
US Competitiveness Low - Trade
Current trade deficits proves US isn’t competitive in the tech field.
Another measure of competitiveness is the U.S. international trading position in high technology industries.
The U.S.
trading position in technology-oriented services remains strong as evidenced by the continued surplus in
trade of computer
software and manufacturing know-how.27 By current measures, the U.S. trade balance across all high
technology sectors
significantly declined over the last decade. This could translate into the loss of manufacturing jobs28 in high
technology
industries, although the data are insufficient to measure the impact on employment over time.
Of the five high technology manufacturing industries identified by the OECD, only that for aerospace had a
large positive
balance of trade in 2005. The scientific instruments industry is relatively balanced with regard to trade,
and the other
three high technology manufacturing categories are negative. The total U.S. trade balance in high
technology shifted from
surplus to deficit in the late 1990s, with a deficit of $32B in 2000, increasing to $135B in 2005. This
increase primarily
reflects increases in the deficits with Asia.
In contrast to the manufacturing category, the U.S. trade balance in royalties and fees for intellectual
property between
affiliated and non-affiliated companies has continued a sustained surplus over the years.29 Licensing fees
and royalties
largely reflect past innovations, sometimes quite distant past, and are not good measures of the current
state of research or
accurate predictors of future intellectual property revenues from the research.
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US Competitiveness Declining
The U.S.’s post-WWII reign as global king of innovation will come to a close
other nations invest in innovation-based development.
Energizing and Employing America for a Brighter Economic Future,” 2007
Since World War II, the United States has led the world in science and technology, and our significant investment in research and
education has translated into benefits from security to healthcare and from economic competitiveness to the creation of jobs. As we
enter the 21st century, however, our leadership is being challenged. Several nations have faster growing economies, and they are
investing an increasing percentage of their resources in science and technology. As they make innovation-based development a central
economic strategy, we will face profoundly more formidable competitors as well as more opportunities for collaboration. Our nation’s
lead will continue to narrow, and in some areas other nations might overtake us. How we respond to the challenges will affect our
prosperity and security in the coming decades.
To illustrate the stakes of this new game, it is useful to examine the changing nature of global competition and to sketch three
scenarios for US competitiveness—a baseline scenario, a pessimistic case, and an optimistic case. The scenarios demonstrate the
importance of maintaining the nation’s lead in science and technology.
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US Innovation Key – Economy

A stagnant energy sector made investors run, and only US support for
innovative renewable technologies can win them back – it’s poised to become
a world-leading industry.
Energy: A Viable Choice, 12/01, p. 4 [http://rael.berkeley.edu/files/2001/Herzog-Lipman-Edwards-Kammen-RenewableEnergy-
2001.pdf]
The push to develop renewable and other clean energy technologies is no longer being driven solely by environmental
concerns; these technologies are becoming economically competitive. According to Merrill Lynch’s Robin Batchelor, the
traditional energy sector has lacked appeal to investors in recent years because of heavy regulation, low growth, and a tendency
to be cyclical. The United States’ lack of support for innovative new companies sends a signal that U.S. energy markets are
biased against new entrants. The clean energy industry could, however, become a world-leading industry akin to that of U.S.
semi-conductors and computer systems.
Innovation is key to the US economy – it’s 85% of per capita income growth.
Energizing and Employing America for a Brighter Economic Future,” 2007, p. 1-2
The United States takes deserved pride in the vitality of its economy, which forms the foundation of our high quality of life,
our national security, and our hope that our children and grandchildren will inherit ever-greater opportunities. That vitality is
derived in large part from the productivity of well-trained people and the steady stream of scientific and technical innovations
they produce. Without high-quality, knowledge-intensive jobs and the innovative enterprises that lead to discovery and new
technology, our economy will suffer and our people will face a lower standard of living. Economic studies conducted even
before the information-technology revolution have shown that as much as 85% of measured growth in US income per capita
was due to technological change.1
Today, Americans are feeling the gradual and subtle effects of globalization that challenge the economic and strategic
leadership that the United States has enjoyed since World War II. A substantial portion of our workforce finds itself in direct
competition for jobs with lower-wage workers around the globe, and leading-edge scientific and engineering work is being
accomplished in many parts of the world. Thanks to globalization, driven by modern communications and other advances,
workers in virtually every sector must now face competitors who live just a mouse-click away in Ireland, Finland, China, India,
or dozens of other nations whose economies are growing. This has been aptly referred to as “the Death of Distance.”
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Innovation Good
Innovation is key to long-term economic growth and environmental stability.
M.P. Hekkert, Copernicus Institute for Sustainable Development and Innovation, Technological Forecasting and Social Change,
“Functions of innovation systems: A new approach for analysing technological change,” 5/07
There is a strong need to influence both speed and direction of innovation and technological change. In this paper, when using
the concept of technological change, we do not refer to technology development in the narrow sense, but to the development of
technology in interaction with the system in which the technology is embedded. We call this joined and interactive process the
innovation process. An innovation can be defined as the successful combination of hardware, software, and orgware, where
orgware refers to the various components of the innovation system [1] R. Smits and S. Kuhlmann, The rise of systemic
instruments in innovation policy, Int. J. Foresight Innov. Policy 1 (2004) (1/2), pp. 4–32. Full Text via CrossRef[1]. Increasing
the speed of innovation is important, since innovation is a key determinant for long term economic growth and development.
Increasing the innovation speed at a national level is a highly complicated process, yet influencing the innovation direction is
even harder.
The necessity to shape innovation processes can be demonstrated by the fact that apart from the advantage of creating
economic growth and societal benefits, current use of technologies often have severe negative side effects. Quite often these
negative side effects are related to the impact of technology on the natural environment. The relation between technology and
the environment is complex and paradoxical [2]. On the one hand, technologies use resources and impose environmental stress.
On the other hand, technologies can also lead to a more efficient use of resources, less stress on the environment and even
cleaning of the environment.
The latter is often referred to as Sustainable Technology Development [3]. Technology development is not an autonomous
process and, therefore, management of technological change is necessary. The design and implementation of these
management processes is a key issue in many national environmental and innovation policy programs.
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Innovation Good
Innovation has long driven the energy sector, but unforeseen challenges
necessitate an innovation increase.
A. D. Sagar and J. P. Holdren, Technology & Public Policy at Harvard University, Energy Policy, “Assessing the global energy
innovation system: some key issues,” 5/02, Vol. 30, Issue 6
Energy services are essential to meeting basic human needs as well as to supporting economic growth, and expenditures on
energy represent a significant part of the cost of living and a significant contribution to GNP. The impacts resulting from
energy extraction, conversion, and use are major components of many of the most important environmental problems at every
scale from the local to the global. And international energy flows are both a significant ingredient in world trade and a potential
source of tension and conflict. For all these reasons and more, the character of national and global energy systems is crucial to
the human condition and to the prospects for improving it.
Technological advances have driven the long evolution of the energy sector, operating to increase energy's benefits while
reducing its costs and risks. Such advances have expanded energy supplies, increased the efficiency of transformation of raw
energy resources into desirable end-use forms, improved the availability and quality of energy services while lowering their
monetary costs, and reduced the adverse environmental impacts that result from energy extraction, conversion, and use. But
recent trends in the organization of the energy sector in many countries, combined with an increasing recognition of the
urgency of traditional as well as new challenges facing it, have raised concerns about national and international capabilities to
bring forth adequate innovations to meet those challenges in the decades ahead.
Efforts to examine the adequacy of the energy-innovation capabilities have traditionally focused primarily on energy-related
research and development (ER&D)—see, e.g., Dooley (1998), Morgan and Tierney (1998), Margolis and Kammen (1999),
among other recent studies—which is the foundation of energy innovation but far from the only important ingredient. The
processes by which the fruits of ER&D are demonstrated in practical contexts, deployed at increasing scale, and diffused across
regional and national boundaries are also critical. Analyses of the trends in, and current status of, ER&D efforts have tended to
be based above all on analysis of spending patterns—which of course measure inputs, not outputs—and hobbled by
inadequacies in the available data. 1 A narrow focus on ER&D misses other crucial aspects of energy innovation, moreover,
notably the process of deployment and diffusion of new technologies. The results is an incomplete understanding of the global
energy innovation system2—the various institutions and the relationships between them that sustain the development,
modification and diffusion of energy technologies—which in turn hinders the development of appropriate policies to guide this
system to enable it to meet future challenges. A much more systematic effort is warranted to assess, and fill, the gaps in
understanding of the global energy innovation system. This piece highlights a number of issues relevant to such efforts.
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Innovation Good – Multiple Reasons
A US alternative energy revolution is vital to domestic security and worldwide
economic transformation.
The United States must confront the reality of its energy circumstances. Consumers and industry are facing the prospect of a
continued rise in the real price of oil and natural gas as conventional reserves are depleted. The increased reliance of the United
States and its partners on imported oil—a large proportion of which comes from the hostile and politically fragile Persian Gulf
—is constraining the nation’s pursuit of important foreign policy objectives. At the same time, greenhouse gas emissions,
especially carbon dioxide emissions from coal-fired electricity-generation plants, are contributing to dangerous global climate
change. In the absence of an aggressive U.S. carbon-emission control policy, there in no possibility of an international
agreement on greenhouse gas emissions that includes both developed countries and rapidly emerging ones such as China and
India.
There is only one solution to the challenge: The United States must begin the long process of transforming its economy from
one that is dependent on petroleum and high-emission coal-fired electricity to one that uses energy much more efficiently,
develops alternative fuels, and switches to electricity generation that is low-carbon or carbon-free.
The benefits of such a transformation are indisputable: It would avoid unnecessary cost and disruption to the U.S. economy,
protect the environment, and enhance national security. The United States has sought to adopt an effective and coherent energy
policy since the first oil crisis of 1973, but it has failed to do so. The challenge for U.S. political leaders is to craft, fund, and
diligently sustain a range of policy measures that will make this critical transition as certain, rapid, and cost-effective as
possible.
In order to meet this challenge, the United States must undergo an innovation revolution. The rate at which the United States is
able to develop and deploy new energy technologies will, to a great extent, determine the ultimate speed and cost of the
economic transformation. Large-scale carbon capture and sequestration, advanced batteries, plug-in hybrid vehicle
technologies, next-generation biofuels for the transportation sector, and a number of other innovations will be vital to achieving
a low-carbon economy, and the United States must not only develop but deploy these technologies. The benefits of such
innovation will accrue to other countries as well, for U.S. technical assistance programs and trade will carry these advances
abroad.
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Innovation Good – Multiple Reasons
Time is of the essence – the US has to act now in the field of innovation in
order to maintain economic growth and maintain nat’l security.
Task Force On the Future of American Innovation (collective including Association of American Universities and National
Association of Manufacturers), “The Knowledge Economy: Is America Losing Its Competitive Edge,” 2/16/05
For more than half a century, the United States has led the world in scientific discovery and innovation. It has been a beacon, drawing
the best scientists to its educational institutions, industries and laboratories from around the globe. However, in today’s rapidly
evolving competitive world, the United States can no longer take its supremacy for granted. Nations from Europe to Eastern Asia are
on a fast track to pass the United States in scientific excellence and technological innovation.
The Task Force on the Future of American Innovation has developed a set of benchmarks to assess the international standing of the
United States in science and technology. These benchmarks in education, the science and engineering (S&E) workforce, scientific
knowledge, innovation, investment and high-tech economic output reveal troubling trends across the research and development
(R&D) spectrum. The United States still leads the world in research and discovery, but our advantage is rapidly eroding, and our
global competitors may soon overtake us.
Research, education, the technical workforce, scientific discovery, innovation and economic growth are intertwined. To remain
competitive on the global stage, we must ensure that each remains vigorous and healthy. That requires sustained investments and
informed policies. Federal support of science and engineering research in universities and national laboratories has been key to
America’s prosperity for more than half a century. A robust educational system to support and train the best U.S. scientists and
engineers and to attract outstanding students from other nations is essential for producing a world-class workforce and enabling the
R&D enterprise it underpins. But in recent years federal investments in the physical sciences, math and engineering have not kept pace
with the demands of a knowledge economy, declining sharply as a percentage of the gross domestic product. This has placed future
innovation and our economic competitiveness at risk.
To help policymakers and others assess U.S. high-tech competitiveness and the health of the American science and engineering
enterprise, we have identified key benchmarks in six essential areas—education,
the workforce, knowledge creation and new ideas, R&D investments, the high-tech economy, and specific
high-tech sectors. We conclude that although the United States still leads the world in research and dis-
covery, our advantage is eroding rapidly as other countries commit significant resources to enhance their
own innovative capabilities.
It is essential that we act now; otherwise our global leadership will dwindle, and the talent pool required to support our high-tech
economy will evaporate. As a recent report by the Council on Competitiveness recommends, to help address this situation the federal
government should:
Increase significantly the research budgets of agencies that support basic research in the physical sciences and engineering, and
complete the commitment to double the NSF budget. These increases should strive to ensure that the federal commitment of research
to all federal agencies totals one percent of U.S. GDP.
This is not just a question of economic progress. Not only do our economy and quality of life depend
critically on a vibrant R&D enterprise, but so too do our national and homeland security. As the Hart-
Rudman Commission on National Security stated in 2001:
…[T]he U.S. government has seriously underfunded basic scientific research in recent years… [T]he inadequacies of our systems of
research and education pose a greater threat to U.S. national security over the next quarter century than any potential conventional war
that we might imagine. American national leadership must understand these deficiencies as threats to national security. If we do not
invest heavily and wisely in rebuilding these two core strengths, America will be incapable of maintaining its global position long into
the 21st century.
In the post-9/11 era especially, we should heed this warning.
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Innovation Good – Economy
Innovation spurs economic growth and increased productivity – ‘90s prove.
Vijay Vaitheeswaran, The Economist, “Something New Under the Sun,” 10/11/07
So why does the generation and handling of ideas matter so much? “We firmly believe that innovation, not love, makes the
world go round,” insists John Dryden of the OECD. Corny perhaps, but studies do show that a large and rising share of growth
—and with it living standards—over recent decades is the result of innovation (see chart 2). Innovative firms also tend to
outperform their peers. “We're not discovering new continents or encountering vast deposits of new minerals,” Mr Dryden
adds. Indeed, the OECD's experts believe that most innovation has been caused by globalisation and new technologies.
Analysis done by the McKinsey Global Institute shows that competition and innovation (not information technology alone) led
to the extraordinary productivity gains seen in the 1990s. “Those innovations—in technology as well as products and business
processes—boosted productivity. As productivity rose, competition intensified, bringing fresh waves of innovation,” the
institute explains.
That is why innovation matters. With manufacturing now barely a fifth of economic activity in rich countries, the “knowledge
economy” is becoming more important. Indeed, rich countries may not be able to compete with rivals offering low-cost
products and services if they do not learn to innovate better and faster.
But even if innovation is the key to global competitiveness, it is not necessarily a zero sum game. On the contrary, because the
well of human ingenuity is bottomless, innovation strategies that tap into hitherto neglected intellectual capital and connect it
better with financial capital can help both rich and poor countries prosper. That is starting to happen in the developing world.
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Innovation Key – Global Emissions
US tech transfer with countries like China and India key to limit global
greenhouse emissions.
In the future, the greatest opportunity may well lie in transferring technology developed in the United States or other industrialized
countries to rapidly emerging counties such as China and India. Such transfers could help to induce rapidly emerging countries to
participate in a global regime to limit greenhouse gas emissions. The Joint Implementation and Cooperative Development
Mechanisms created in the Kyoto Protocol are examples of such an approach. These mechanisms are currently restricted to carbon-
mitigating technologies, but the transfer of a broader range of technologies, addressing renewable energy, biofuels, and energy
efficiency, could also be envisioned. It is unlikely, however, that technology transfer alone will be sufficient to bridge the gap between
how developed and developing countries control carbon emissions.
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Competiveness Alternative Impact Scenario

1. Alternative Energy Competiveness is Important to Bush
George W. Bush, Nuff Said, February 20, 2006 REMARKS BY THE PRESIDENT ON ENERGY
I want to talk to you about the fact that I think we're in an important moment in history, and that we have a chance to transform
the way we power our economy and how we lead our lives. That's what I'm here to talk about. It's a good place to come to talk
about it because, the truth of the matter is, in order to seize the moment, this country has got to remain technologically
advanced.
Johnson Controls has been on the cutting edge of energy technology and other technologies for more than a century. And the
innovators that work here and the smart folks who work here are on the leading edge of change, and that's why I've come. And
there's a role for government to help and I want to explain that role. Before I do, again, I want to thank you, John. I want to
thank all the folks who work for Johnson Controls. It's not easy to host the President. (Laughter.)
I had the honor of touring the laboratory on the other side of town there, and it was really neat to see the engineers and
the scientists and the Ph.D.s all working hard to apply their God-given talents to help this country remain on the
leading edge of technology. It reminded me of one of the challenges we have in America, and that's to make sure a new
generation of our citizens are interested in science and engineering and physics. And part of making sure this country is the
leader in the world, we've got to make sure our children are properly educated so they'll be ready for the jobs of the 21st
century.
2. Bush Considers Alternative Energy Innovation and competiveness as a
matter of national security.
George W. Bush, Nuff Said, February 20, 2006 REMARKS BY THE PRESIDENT ON ENERGY
I think you're beginning to get the drift of what I'm talking about. We're on the edge of some amazing breakthroughs --
breakthroughs all aimed at enhancing our national security and our economic security, and the quality of life for the folks
who live here in the United States. And so, therefore, now is the time for Congress to join me in spending this money. I think
it's a good use of your money, to help us achieve major breakthroughs in how we live and how we can reduce our dependency
on oil. This is an issue that Republicans and Democrats can, and must, come together on. It's an issue that -- (applause.)
3. Bush Takes Protectionist Measures to protect competition in industries

he considers important to national security – steel proves.
The American Spectator, 03/02-04/02, http://www.lexisnexis.com/us/lnacademic/auth/checkbrowser.do?
ipcounter=1&cookieState=0&rand=0.38284863734562147&bhcp=1
Yet that is what President Bush has attempted to do. In this year's State of the Union Address, he sounded like Adam
Smith: "Good jobs depend on expanding trade." But when he went ahead in March and ordered higher import taxes
and more quota restrictions on imported steel, he embraced what can only be called a "mercantilist" policy, to protect
favored producers at the expense of the rest of the country. From The Wealth of Nations back to a crabbed industrial
mercantilism in less than 60 days-quite a feat.
The administration got itself into this fix last June, when President Bush directed the U.S. trade representative to request
an International Trade Commission investigation into the "injury" from foreign producers' allegedly "dumping"
steel on American markets. The president justified his order on the grounds that the declining fortunes of big, old-
fashioned, integrated steel producers raise considerations of "national security." Adam Smith comes to mind again,
with his warning about producers claiming that every tariff they seek is a "patriotic duty."
The latest moves are being sold as "fair trade": a justifiable reaction to "unfair" practices by our trading partners. The
Bush political shop is also attempting to justify this new surge of protectionism as a sophisticated long-run strategy
to achieve free trade-a bargaining lever. But no amount of clever spin can disguise the reality: that protectionism
is neither economically right nor morally just, because it punishes the vast majority of innocent American producers
(of things other than steel) and consumers.
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Competiveness Alternative Impact Scenario
4. Protectionist policies can lead to a trade war threatening global stability for developed countries and the poor.
Chinadaily.com.cn, 8/3/07, “Protectionism – the Real Threat to Growth and Stability,” p. ln
If things are so good, then why are voters demanding protectionism? I am convinced that today's chorus of protectionist actions
represents more than the profit-seeking actions of a few special interest groups. Today, when a political leader announces a
new protectionist measure, crowds cheer. I believe that rising protectionism, nationalism, and social instability are rooted
in the turbulence caused by rapid economic change. Rapid economic change raises average incomes but it creates new
industries and destroys others, creating uncertainty in the lives of many people. Those, whose fortunes have been temporarily
or permanently reduced, as well as those who are simply afraid of change, appeal to political leaders for relief; political leaders
who promise to stop or reverse change will gain power over leaders who counsel openness.
Left unchecked, this process can lead to global trade war as country after country erects non-market barriers to the
smooth flow of trade. Ultimately, these mounting frictions can produce system failure, akin to the blackouts caused by
failures of an electricity network, in which the global economy stops growing, as it did in the 1970's.
Rampant protectionism could also breed social and political instability and, ultimately, bring nations into conflict.
Political instability would put all the gains of the past quarter century at risk. The unintended consequences of
protectionism would be harmful for people living in developed countries; they would be a tragedy for the world's three
billion poor people
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Heg Impacts
US hegemony is key to preventing proliferation and global nuclear war.
Khalilzad, 1995 (Zalmay, Director of the Strategy and Doctrine Program @ RAND and current
US Ambassador to Iraq, "Losing the Moment? The United States and the World After the Cold
War," The Washington Quarterly, Spring, p. Lexis)
Under the third option, the United States would seek to retain global leadership and to preclude
the rise of a global rival or a return to multipolarity for the indefinite future. On balance, this is
the best long-term guiding principle and vision. Such a vision is desirable not as an end in itself,
but because a world in which the United States exercises leadership would have tremendous
advantages. First, the global environment would be more open and more receptive to American
values -- democracy, free markets, and the rule of law. Second, such a world would have a better
chance of dealing cooperatively with the world's major problems, such as nuclear proliferation,
threats of regional hegemony by renegade states, and low-level conflicts. Finally, U.S. leadership
would help preclude the rise of another hostile global rival, enabling the United States and the
world to avoid another global cold or hot war and all the attendant dangers, including a global
nuclear exchange. U.S. leadership would therefore be more conducive to global stability than a
bipolar or a multipolar balance of power system.
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TSM Good
TSM framework is the perfect combination of accountability and flexibility.
AIPLA [AMERICAN INTELLECTUAL PROPERTY LAWASSOCIATION], Brief of American Intellectual

Property Law Association as Amicus Curiae Supporting Respondents at 6, KSR Int'l Co. v. Teleflex, Inc., No.
04-1350 (U.S. Oct. 12, 2006)
TSM is a well-established, thoughtfully-analytic framework that provides certainty and uniformity in obviousness
determinations while allowing proper flexibility. By requiring a showing of why someone of ordinary skill in the relevant art
would think the invention obvious, it functions as a critical evidentiary device that prevents arbitrary decisions driven by
hindsight.
Petitioner and its supporting amici (notably the Government) seek to eliminate any analytic framework whatsoever or suggest
tests to replace the TSM analysis. These tests, however, ignore the substantial risks of hindsight, ignore the statutory language,
ignore the roots of TSM analyses, and do not comport with this Court's decisions requiring a reason someone of skill in the art
would combine prior art before holding that there are only obvious differences between the patented invention and the prior art
as a whole. Further, they improperly shift the evidentiary burden to the patentee by ignoring the statutory presumption that an
issued patent is valid (35 U.S.C. § 282). They instead seek to set aside a well-established legal framework that is consistent
with precedent and statute for fact-driven, technology-related individualistic reasons. While asserting that the Federal Circuit
has departed from
Graham, they raise the same issues and arguments as the Graham Court rejected when those petitioners and amici also raised
them.9 As discussed infra, these proposals should be rejected. They are inappropriate and unworkable, particularly in the
context of a summary judgment appeal, as here.
TSM is the most effective patent framework – 3 reasons.

04-1350 (U.S. Oct. 12, 2006)
The TSM analytic framework fulfills at least three critical functions: (1) it protects against hindsight, (2) it provides the
needed flexibility to address questions of obviousness where fact patterns differ, and (3) it provides certainty and
predictability in the methodology of obviousness determinations due to the long history of its use. It is a critical
component in separating new combination inventions from unpatentable ones. It should not be disturbed.
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TSM Good
TSM is the only law flexible enough to account for evolving technology and
unpredictable circumstances.

04-1350 (U.S. Oct. 12, 2006)
The legal standard for obviousness does not change case to case but the facts – the inventions and technology – do. Thus, the
analytic framework must be adaptable. As Judge Learned Hand said in Safety Car, supra, there cannot be a single, objective
test. The rule must be flexible to account for both changing facts and technology. Graham, 383 U.S. at 11-12, 17-19. This is
what the Federal Circuit has done. In re Eli Lilly & Co., 902 F.2d 943, 947 (Fed. Cir. 1990).
In the present case the technology is mechanical, which the Ruiz opinion correctly noted is "simpler" to analyze. Ruiz, 357 F.3d
at 1276; see McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1351 (Fed. Cir. 2001) ("When the art in question is relatively
simple, as is the case here, the opportunity to judge by hindsight is particularly tempting. Consequently, the tests of whether to
combine references need to be applied rigorously.")(citations omitted). In more complex technologies, such as biotechnology,
understanding the state of the art for an obviousness analysis is more difficult.
By looking through the eyes of one of ordinary skill in that art at the relevant time, TSM accounts for the different
technologies. The long history of applying TSM demonstrates that it is well-adapted for the different circumstances in
individual cases. As explained supra, the TSM analysis does not impose an inflexible rule of law demanding an explicit written
suggestion in the prior art. To the contrary, it provides for multiple avenues of proof, allowing adaptation for different
technologies and factual circumstances. E.g., Dystar, slip. op. at 8-9.
TSM's ability to account for wildly divergent fact patterns becomes clearer in reviewing how the methodology has been
properly applied. For example, in Lamb-Weston, Inc. v. McCain Foods, Ltd., 78 F.3d 540, the patent claimed a process for
making partially-fried ("parfried") waffle-shaped French fries. The court found that the invention would have been obvious
based on prior art disclosing waffle-shaped potato chips and the process for parfrying. Id. at 544-45. Applying the TSM
analysis, the court found the motivation to combine from prior art disclosing the desirability of parfrying potato products and
the suitability of the parfry process to waffle fries. Id. It stated that it was "the potato products resulting from these slicing
devices, and not merely the devices themselves, that created the motivation to combine." Id. At 544. Unpredictable
technologies, like biotechnology, may require more explicit evidence supporting combination of known elements because of
the state of knowledge in that art. In re Vaeck, 947 F.2d 488 (Fed. Cir. 1991), is such a case. It concerned genetic engineering
techniques for producing specific proteins that are toxic to insects in cyanobacteria. The prior art taught producing these
proteins in genetically engineered bacteria cells, and separate references taught that a different protein could be made in
cyanobacteria. Id. at 492. The PTO Examiner and appeal board found the invention obvious, holding that one of ordinary skill
in the art would have been motivated to use cyanobacteria because they were attractive hosts for the expression of proteins. Id.
at 492, 494. The Federal Circuit reversed, finding that obviousness could not be sustained on that record because there was no
suggestion, either explicitly or implicitly, in the prior art that one of ordinary skill would reasonably expect the substitution to
be successful. Id. at 495.19 While the legal standard for a TSM analysis remains unflinching, it is a flexible standard that may
be applied case-specifically based upon the technology, art and circumstances. A per se rule of law that ignores these factors
cannot adequately accommodate the diverse facts present in any given case because obviousness is an inquiry based on
complex underlying facts. Graham, 383 U.S. at 17-18; Eli Lilly, 902 F.2d at 947. The danger of per se rules becomes apparent
when asking why the prior art might be silent on whether to combine elements. It could be because (1) the subject matter was
so obvious that it would not be addressed in the written prior art, or (2) the idea is inventive and one that has not previously
occurred to those of ordinary skill in the art. If, as Petitioner suggests, an invention should be presumed obvious when the
elements are old – unless the inventor can show the opposite, such as a complete rejection of the premise underlying the
inventor's work (a so-called "teaching away"20) – the standard would account only for the former, and would improperly deny
patents to the latter. This is the very reason why Graham recognized that the concept of "invention" is amorphous and called
for a "functional approach to questions of patentability." Graham, 383 U.S. at 11-12. The TSM framework meets this demand
and is well-suited to adapt between scenarios and thus more likely to provide correct determinations.
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TSM Good
Standards Other Than TSM Lead To Less Certainty, Predictability, Decline In
Quality, And Innovation In The Patent System
PATRICK G. BURNS, GREER, BURNS & CRAIN, LTD. October 2006 KSR INTERNATIONAL CO., Petitioner,v. TELEFLEX
INC. and TECHNOLOGY HOLDING CO., Respondents. “BRIEF OF THE INTELLECTUAL PROPERTY LAW
ASSOCIATION OF CHICAGO AS AMICUS CURIAE IN SUPPORT OF RESPONDENT.”
As a practical matter, rejection of the TSM requirement would lead to less certainty and predictability in both patent
prosecution and litigation. From an administrative standpoint in the U.S. Patent and Trademark Office (“PTO”), objective evidence
showing obviousness to modify and combine is essential for training purposes, review and consistency. It is important in
litigation because judges and juries are not schooled in the nuances of obviousness and non-obviousness. Opponents of the
TSM requirement advocate using subjective standards such as “synergy,” “mere aggregation,” and so forth. Under such
subjective standards, the conclusion as to obviousness depends more on the personal experience and personality of the person
making it than on the evidence. For at least this reason, such subjective 3 standards would have far reaching adverse
consequences, including a decline in quality, consistency, and predictability in the PTO and in litigation. The patent system
favors disclosure of all non-obvious inventions over maintaining inventions as trade secrets. In so doing, it is important that
the system encourage disclosure of incremental improvements, as well as pioneering breakthroughs in technology. The
adoption of subjective standards that might recognize only the breakthroughs would not encourage the disclosure of
incremental improvements.
TSM Discourages Improper Use Of Hindsight. Subjective Standards Undermine

This And Have Unwanted Consequences
As a practical matter, objective standards such as those defined by the TSM requirement promote the goals of certainty over
uncertainty, and predictability over unpredictability. Evidence of TSM also discourages the improper use of hindsight.
Adoption of the subjective standards proffered by Petitioner and others would likely undermine these goals and have
undesirable consequences from a practical standpoint, both in patent prosecution and in litigation.
The Patent System Is Crafted To Encourage Innovation. TSM Is Not A Broken System.
Petitioner argues that the TSM standard has lowered the level of invention required for patentability to an undesirable level
and has greatly increased the difficulty of overcoming the presumption of validity in litigation.9 The argument is misplaced.
The patent system has contributed to an explosion of technological development in this country, particularly since the creation of
the Federal Circuit. That development can be broadly described to include both fundamental advances and small, incremental
improvements in existing products, as well. The patent system is crafted to encourage innovation at all levels. The invention in
this case was an incremental improvement, so incremental improvements will be addressed here. The patent system
encourages incremental improvements in technology because even small technological advances are extremely valuable to the
progress of technology, and valuation of such improvements is best left to the market. As such, the patent system performs an
important function: encouraging disclosure of even incremental innovation over secrecy.10
67
Patents Aff
PMA
DDI 2008 BQ
TSM Good
Non-TSM Standards Are Arbitrary And Will Hurt Innovation. The TSM Standard
Should Not Be Replaced.
Petitioner and other opponents of the TSM standard propose abandoning the TSM standard and replacing it with a different
test. The arguments include making the test whether a person of ordinary skill would have been “capable of ” making the
combination,13 or whether the result was “synergistic,”14 “wholly unexpected,”15 reached an “extraordinary level,”16 or was
a “mere aggregation.”17 The Government suggests making the determination on a case-by-case basis.18 Each of these subjective
standards is vague and arbitrary, and each has flaws which will become apparent. The suggested “capable of ” standard for
proving obviousness might or might not raise the level of patentable invention, but it would surely create uncertainty. More
importantly, it would undermine one of the two purposes of the patent system – prompt disclosure. The patent system rewards
those who can and do, not those who can but don’t. Thus, if 1,000 people are “capable of ” combining several references to
obtain a claimed invention, but 999 do not disclose the combination, the patent system rewards the first one who does disclose
the invention, provided that the combination is not “obvious.” In the present case, all of the relevant prior art was publicly
available at least four (4) years before February 14, 1998, the presumptive date of the invention of the patent-in-suit.19 Teleflex, Inc.
v. KSR Int’l Co., 298 F. Supp.2d 581, 588-89 (E.D. Mich. 2003). There may have been others who had the innovative abilities to
make the invention, i.e., they were “capable of ” making it, but they did not. In sum, measuring patentability by whether one of
ordinary skill was “capable of ” making an invention would be wrong. The “synergy,” “wholly unexpected” and
“extraordinary level” perspectives are also completely subjective. Among other things, they depend on the viewer. One of
ordinary skill in the art might find a result wholly unexpected or extraordinary that would not be unexpected or
extraordinary to a technically untrained judge or jury, and vice versa. There would be no sense of predictability, and the
patent system would not serve the public interest.20 The “synergy,” “wholly unexpected” and “extraordinary level” verbiage
suggests a high level of invention. However, a patent is not a Nobel Prize reserved for the best and only the best. It is an
incentive to innovate, improve and disclose at all levels at or above the nonobvious threshold. Further, the patent statute has no
requirement that to be patentable, an invention must be “synergistic,” “wholly unexpected” or the product of an
“extraordinary level” of skill. The so-called “mere aggregation” test is also subjective. If an aggregation of components is truly
“mere,” there will be evidence of teaching, suggestion, or motivation to combine the elements. The Government argues in
favor of a case-by-case analysis that could take into account differences in the art, as well as customs and practices in various
arts. However, the Government provides no useful guidance for how such a test would be implemented. These subjective,
undeveloped concepts would create less certainty and predictability than we presently enjoy and would imperil the incentives
to innovate and invest in innovating. They should not replace the TSM standard.
68
Patents Aff
PMA
DDI 2008 BQ
TSM Good
TSM Is Key To Predictability, Certainty, And Proper Use Of Hindsight
From an administrative perspective, the PTO is a pyramid, with the Board of Appeals at the top and hundreds of examiners at all
levels of skill at the bottom. Many of the examiners are not attorneys, and turnover is infamously high.3 Effective administration
requires well-defined guidelines for consistent examination and to assure fair and even treatment to all applicants. The PTO is
staffed by junior examiners who do not have signatory authority. Their work is reviewed by supervisors who are authorized to
sign papers. The supervisors are also responsible for training, quality and consistency. Among many other things, the junior
examiners must learn about the legal standard for rejecting a claimed invention as obvious. This includes an understanding of
how and when references can be modified and combined to establish obviousness, which is the heart of the TSM standard.4 If a
rejection is appealed, the PTO Board of Patent Appeals needs the examiner’s objective findings to review the decision and
consider the applicant’s arguments. The Board’s decision is reviewed by the Federal Circuit or the federal district court,
where detailed, objective findings are also a practical necessity.5 Without such objective findings, beginning at the first level of
review by junior examiners, effective review is all but impossible. All things considered, including the size of the bureaucracy,
patent prosecution in the PTO is relatively consistent and predictable, in part because of the TSM standard. Without objective
evidence sufficient to meet the TSM standard, the presently orderly and relatively predictable prosecution of patents is apt to
devolve into a chaotic condition of unpredictability and uncertainty. In addition, there will be little or no protection against the
improper use of hindsight. These consequences can and should be avoided by retaining the TSM standard.
TSM Is An Effective Standard. Any Problem With The Patent System Lies
Elsewhere.
District court judges and juries do not have the training of examiners, yet they must decide whether an invention would have been
obvious to a hypothetical person in a certain technical field. Without evidence that links the prior art presented, the judge or jury
would be left adrift, with no objective reference from which to decide the ultimate conclusion regarding obviousness. Petitioner
argues that it is too difficult to prove obviousness in litigation.6 It is true that patents enjoy a statutory presumption of validity
and that the statute fixes the burden of proving invalidity on the patent challenger. 7 The evidence must be clear and
convincing.8 The TSM standard merely calls for evidence that justifies and explains the modifications and combinations of
references assertedly proving invalidity. If there is a problem, it does not lie with the TSM standard. Here, too, the TSM
evidence-requiring standard is an important tool in obtaining relative predictability and certainty. As a practical matter,
overturning the TSM standard would have an adverse impact on patent enforcement because that tool of predictability and
certainty would be compromised.
69
Patents Aff
PMA
DDI 2008 BQ
TSM Good
Companies Won’t Invest In Products Without Secure Patents – TSM Key
Richard W. Hoffmann, Counsel Of Record - Warn Hoffmann Miller & Lalone Pc. 2006 KSR INTERNATIONAL
CO., Petitioner, v. TELEFLEX INC. and TECHNOLOGY HOLDING CO., Respondents. BRIEF AMICI CURIAE OF MICHELIN
NORTH AMERICA, INC., ARVINMERITOR, INC., AND NARTRON CORPORATION IN SUPPORT OF RESPONDENT.
The current approach assures that the same consistent application of the obviousness standard will be maintained. Companies
will continue to invest in improving technology provided they can secure rights to their respective innovations. Changing the
standard would likely curtail further innovation. Companies will be less willing to invest in product development if it is unable
to secure patent rights. It simply will not be economically feasible to spend resources on innovation that cannot be protected.
Without protection manufacturers can outsource components developed by others to the cheapest bidder, wherever in the
world they might be found in an effort to sell their products at the lowest price and maintain their significant market positions.
Thus, although changing the current standard of patentability by eliminating the teaching-suggestion-motivation approach to
arriving at the ultimate conclusion of nonobviousness would be beneficial to some amici on behalf of Petitioner, such a change
would not be good for American industry as a whole. Changing the current level of patentability will impact the American
economy in the future.
New Patent Procedures Result In False Obviousness Rulings On Patent Claims
Christopher A. Cotropia- Associate Professor of Law, Intellectual Property Institute, University of Richmond School of Law. 2006
Brigham Young University Law Review. “Patent Law Viewed Through an Evidentiary Lens: The "Suggestion Test" as a Rule of
Evidence.”
Type I errors occur when a court or the USPTO finds a patent claim obvious when, in actuality, it is not. n334 That is, the
claimed invention is found unpatentable even though it describes an invention that is a significant technological advance over
the prior art and would not have been created absent the incentive of patent protection. n335 The suggestion test, when operating
properly, does not find a suggestion when these two conditions are present. n336 The problem, detailed above, is that evidence of an
undocumented suggestion has certain inherent attributes that lead to a finding of suggestion when a suggestion is actually
absent. n337 These factors create Type I errors because they cause suggestions to be found where they are not, and these false
suggestions lead to false conclusions of obviousness. The suggestion test's rule of evidence reduces overvaluation of suggestion
evidence. As a result, the rule reduces the number of false findings of suggestion, which in turn results in less false findings of
obviousness. Without a factual finding of suggestion, a court or the USPTO cannot hold a patent claim invalid because of
obviousness. The rule, therefore, prevents possible Type I errors by increasing the likelihood that suggestion findings are
accurate. This evidentiary aspect of the suggestion test helps to ensure the correctness of determinations of obviousness.
70
Patents Aff
PMA
DDI 2008 BQ
TSM Good
TSM Is A Flexible System
Opponents of the TSM standard incorrectly assert that the TSM standard is an inflexible requirement and urge this Court to
open the door to other ways to prove obviousness. IPLAC certainly agrees that if there are other objective proofs of obviousness
that may apply in a given case, such proof should not be rejected. Such additions or alternatives to the TSM standard could be
developed, but that should be left to the Federal Circuit.12 In any event, the TSM standard has broad flexibility, as will be seen. The
TSM standard addresses three types of evidence which may be used to support a conclusion of obviousness: teaching,
suggestion or motivation. The “teaching” leg of the rule is the most stringent, because a teaching suggests the most detailed
form of disclosure. Evidence of an explicit “suggestion” to combine might be less specific than that required to establish a
teaching. It is less stringent and more flexible. Evidence of an “implicit” suggestion can also establish obviousness, with an
even lower threshold of actual disclosure. Here, evidence of the level of skill in the art and knowledge of those of ordinary skill
can be quite relevant. Motivation to solve a problem in a particular way is another alternative leg that can be used under the
TSM standard to establish obviousness. This offers even more flexibility in judgment. As Chief Judge Michel of the Federal
Circuit said recently: In contrast to the characterization of some commentators, the suggestion test is not a rigid categorical
rule. The motivation need not be found in the references sought to be combined, but may be found in any number of sources,
including common knowledge, the prior art as a whole, or the nature of the problem itself . . . . As we explained, . . . “there is
no requirement that the prior art contain an express suggestion to combine known elements to achieve the claimed invention.
Rather, the suggestion to combine may come from the prior art, as filtered through the knowledge of one skilled in the art.”
[citations omitted] DyStar, supra note 2, at *4. Thus, the TSM standard is quite flexible, adequately implements § 103(a), is
consistent with this Court’s precedents, and serves the public interest in obtaining consistent, reliable, predictable prosecution
and protection of patents.
Abandoning TSM Will Cast Doubt On Tons Of Patents That Have Been Validated Under
This System. This Is Catastrophic.
Petitioner has urged a synergism standard for combination patents. Nothing in 35 U.S.C. §103 calls for special treatment of
combination patents. Synergism, by itself, is but one factor that should be considered in the overall legal analysis of
obviousness. It cannot drive the inquiry. Casting aside the Federal Circuit’s teaching-suggestion motivation approach will
have draconian results. Tens of thousands of patents have issued in reliance on the approach. Discarding the approach in its
entirety will cast doubt on each of these patents.
71
Patents Aff
PMA
DDI 2008 BQ
TSM Good: Alt Energy Specific
Eliminating TSM destroys alternative energy innovation – Fuel cells prove
Take, for example, American dependence on foreign oil. Reliance on foreign oil will be reduced in the future, at least in part, by
advances in technology in the areas of alternative fuels, hybrid vehicles and fuel cells, to name a few. The automotive industry,
including suppliers such as amici, will be directly impacted by the continuous, incremental advances in these areas. For
example, billions of dollars are being invested each year in the development of fuel cells and the technologies associated with
integrating fuel cell stacks into vehicles. The fuel cell was first invented in 1839, but there was no significant practical application
for fuel cells until they were used by NASA in the space program. At first, the cost of building a fuel cell was astronomical. When
NASA first started using fuel cells, a PEM fuel cell cost approximately $500,000 per kW. (See, www.sae.org/automag/features/fuel
cells/fuelcell3. htm). Work continues at a feverish pace to reach a commercial automotive fuel cell cost target of approximately $25
per kW for a 50 kW system. (See, www.fuelcells.org, Questions and Answers About Hydrogen And Fuel Cell.) The cost of making a
fuel cell stack and then integrating the same into a vehicle is more than a hundredfold higher than is acceptable for commercialization.
However, fuel cell vehicles will be commercialized as the result of stepwise improvement in the technology. The current approach
to patent issuance fosters the development of this technology. It is virtually impossible for any one company to, on its own, fund
the development of a commercially acceptable fuel cell vehicle. In such a situation, the patent portfolios of the companies
funding development become critical. As is common, alliances are being formed to share knowledge, resources and cost in an
effort to speed the development of this important technology. The patent portfolios and licensing are being offered as
consideration. Furthermore, when fuel cell vehicles are eventually commercialized, such patent portfolios will be important for
enforcement and defensive measures. Most of these important patent portfolios today include files histories urging
patentability based upon the teaching-suggestion-motivation approach that has been the approach used by the Federal Circuit
and the Court of Custom Appeals for more than forty years. Eliminating the teaching-suggestion-motivation approach will
adversely impact thousands of the patents in these portfolios, and the ability of inventors to protect their contributions to the
development of the useful arts going forward. More importantly, eliminating the teaching-suggestionmotivation approach will
likely result in the nonobviousness decision making process under 35 U.S.C. §103 being supplanted by reliance on negative
rules, rhetorical embellishments or talismanic slogans.
72
Patents Aff
PMA
DDI 2008 BQ
TSM Good
TSM Good – Kills The Burden Of Showing Non-Patentability On The Patent Office. The
Effects Of Eliminating TSM Are Radical And Grave
Currently, patent prosecution procedure requires that the Patent Office show a basis for denying a patent to an inventor. Thus,
in the first instance, the burden of showing nonpatentability rests with the Patent Office. In re Piasecki, 745 F.2d at 1472.
Elimination of the teaching-suggestionmotivation standard in favor of the synergism standard would stand that burden on its
head. Rather than having the Patent Office be required to show non-patentability in the first instance, the burden will be on
the applicant to show that his invention has achieved some synergistic result to be patentable. The teaching-suggestion-
motivation approach is the applicant’s safeguard against the Patent Office’s potential application of hindsight. If this
approach is eliminated, all the Patent Office will need to do is pick through the prior art to find each claim element. Once the
prior art references have been obtained, whether or not the invention would have been obvious to one of ordinary skill in the
art would become an irrelevant inquiry. The Patent Office will presume that such standard has been met if it can find all of
the pieces of the claimed invention in the prior art. This has never been the law. Indeed, this was an approach specifically rejected
by this Court in Dennison. 475 U.S. at 810. The teaching suggestionmotivation standard protects the applicant and gives the
Patent Office an objective standard by which it can measure whether an invention is obvious. It also forces the Patent Office to
articulate the basis for its conclusion, thus giving the applicant an opportunity to rebut that conclusion.
TSM Good – Removing It Would Devastate US Economy And Industries
The Federal Circuit adopted the teaching-suggestionmotivation approach to the ultimate conclusion on nonobviousness to
ensure that the decision-making process was focused with greater intensity on the requirements of §103. The Federal Circuit
accomplishes that result and does not lower the bar or lessen the standard of patentability. Rather, it provides a uniform
approach to making the obviousness decision. Eliminating the teaching-suggestion-motivation approach and adopting either of
the approaches sought by Petitioner would undoubtedly result in the issuance of fewer patents. This would have a devastating
impact on the United States economy and industries. Rarely does a commercial product surface that relies on technology that
was developed without reference to or improve upon earlier works. To the contrary, the development of most technologies that
are embodied in the commercial products that sustain the United States’ economy proceed along a step-like fashion. This often
results in the issuance of patents, with each patent marking a step in the progress of the art. The patent system plays an
important role in providing an incentive and protection for the individuals and companies that invest considerable amounts of
time, resources and capital to develop such technologies. Most importantly, the patent system provides a vehicle for inventors to
benefit from the knowledge gained by other inventors as they solve various problems associated with bringing a technology to
commercialization and disclose the same in their patent applications, thus further promoting the progress of the useful arts.
73
Patents Aff
PMA
DDI 2008 BQ
TSM Good
TSM Ensures That Obviousness Is Based On Evidence Not Speculation
ROCHELLE K. SEIDE-Counsel of Record JOHN K. HSU ARENT FOX PLLC. 2006. KSR INTERNATIONAL CO., Petitioner, v.
TELEFLEX INC. and TECHNOLOGY HOLDING CO., Respondents. BRIEF FOR AMICUS CURIAE NEW YORK
INTELLECTUAL PROPERTY LAW ASSOCIATION IN SUPPORT OF RESPONDENTS.
<http://supreme.lp.findlaw.com/supreme_court/briefs/04-1350/04-1350.mer.ami.nyipla.pdf >
While the Court in Graham provided the guiding principles for the application of Section 103, the Federal Circuit developed
the teaching-suggestion-motivation test to fill the gap not fully addressed in Graham.6 The Federal Circuit developed the test
to ensure that the patent system would have a reliable, objective test to protect inventors from a bias or temptation to use
hindsight. In turn, the Federal Circuit has instilled an objectivity and predictability to the obviousness analysis.7 At its core, the
teaching-suggestionmotivation test is premised on the notion that the obviousness analysis should be properly grounded on
some concrete reason other than hindsight. subsequent invention, there must be some reason for the combination other than
the hindsight gleaned from the invention itself.”). This forces the analysis to be based on evidence—not speculation. See Alza
Corp. v. Mylan Labs., Inc., No. 06-1019, slip op. at 5-6 (Fed. Cir. Sept. 6, 2006) (“Our anti-hindsight jurisprudence is a test that rests
on the unremarkable premise that legal determinations of obviousness, as with such determinations generally, should be based on
evidence rather than on mere speculation or conjecture.”).
TSM Provides Protection From Improper Hindsight – No Other System Solves This Fault
The need for protection from the use of hindsight is even more pronounced in cases involving mechanical inventions, such as
the one at bar.8 There is a very real risk that familiarity with mechanical principles and apparatus, which would not occur
with regard to inventions directed to the chemical or electrical fields, will breed a false sense of intuition or understanding and
lead to a more prevalent use of hindsight with regard to mechanical inventions. See McGinley v. Franklin Sports, Inc., 262 F.3d
1339, 1351 (Fed. Cir. 2001) (“When the art in question is relatively simple, as is the case here, the opportunity to judge by hindsight is
particularly tempting.”). By requiring concrete evidence to support the patent examiner’s or court’s determination, the
teachingsuggestion- motivation test eliminates the arbitrary use of vague tests which, in reality, are no more than the
application of hindsight. Hence, the test strongly protects against the very situations that plagued the patent system when the
dubious “standard of invention” test held sway prior to the enactment of Section 103.
74
Patents Aff
PMA
DDI 2008 BQ
TSM Good
Eliminating TSM Will Prevent Valuable Innovations From Receiving Patents – This Will Be
Devastating For Alternative Energy Development
Absent the Teaching-Suggestion-Motivation Test, Many Valuable Inventions Would Be Susceptible to Invalidation by Judicial
Hindsight, or May Be Found Unpatentable in the First Place. Many useful inventions may appear to be obvious with the
improper application of hindsight. As the Court has noted, once an invention “has succeeded, it may seem very plain to any one
that he could have done it as well. This is often the case with inventions of the greatest merit.” Washburn & Moen Manuf ’g Co.
v. Beat’em All Barbed-Wire Co. (The Barbed Wire Case), 143 U.S. 275, 283 (1892). The Barbed Wire Case provides a good
example of such a situation. The Court was faced with a simple invention and acknowledged that the invention was not
radically different from the previous art. Id. at 282. However, that minor change “made the barbedwire fence a practical and
commercial success.” Id. Another example is the invention directed to a horse collar. James V. DeLong, Mind Over Matter,
REASON (June 1998), available at http://reason.com/9806/fe.delong.shtml; see also John Langdon, HORSES, OXEN AND
TECHNOLOGICAL INNOVATION: THE USE OF DRAUGHT ANIMALS IN ENGLISH FARMING FROM 1066 TO 1500 5-9 (Cambridge
University Press 1986). By making a relatively minor change to the harnesses of the day, so that they stopped choking the
animals, farming productivity (plowing, harvesting, etc.) was increased fourfold. Id. Again, an evaluator looking at the
problem from the perspective of the final result might readily conclude that the change was obvious to one skilled in the art;
yet the change took many years to occur, which suggests that the change was not at all obvious. Without the Federal Circuit’s
teaching-suggestionmotivation test, many inventions that are of considerable value to society may never receive the patent
protection their inventors have earned and deserve. History is replete with examples of relatively minor inventions that have
gone on to advance, and even to revolutionize, their fields. Absent the protection afforded by the teaching-
suggestionmotivation test, an evaluator assessing these inventions could simply have dismissed them as obvious to a person of
ordinary skill in the art without citation to even a scintilla of evidence.
TSM Is Flexible
The Teaching-Suggestion-Motivation Test Allows for Flexibility. Petitioner and its supporting amici contend that the teaching-
suggestion-motivation test is rigid and inflexible and thus prevents the exercise of common sense and knowledge in the
technology. See, e.g., Brief for the United States, at 17. To the contrary, the test is only “rigid” to the extent it properly prohibits
invalidating patents based on nothing more than an unfounded bias masquerading as “common sense” or intuition. Rather
than being rigid or inflexible, the test, when properly applied, allows all relevant information to be evaluated by the courts and
the PTO. Indeed, as the Federal Circuit recently described, the teaching-suggestion-motivation test is “quite flexible and not only
permits, but requires, consideration of common knowledge and common sense.” Dystar Textilfargen GMBH & Co. Deutschland
KG v. C.H. Patrick Co., No. 06-1088, slip op. at 20 (Fed. Cir. Oct. 3, 2006). Equally important, an explicit statement of teaching,
suggestion, or motivation to combine prior art references is not required to establish the obviousness of an invention. Id.
75
Patents Aff
PMA
DDI 2008 BQ
TSM Good
TSM Is Flexible – Recognized In Key Sectors
The Federal Circuit has repeatedly recognized that a motivation, suggestion, or teaching in the prior art can be found either
explicitly or implicitly. See Alza, slip op. at 3; In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006) (quoting Nat’l Steel Car, Ltd. v.
Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1337 (Fed. Cir. 2004)); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d
1293, 1322 (Fed. Cir. 2005) (“[T]he motivation to combine need not be found in prior art references, but equally can be found
in the knowledge generally available to one of ordinary skill in the art.”). Indeed, the Federal Circuit has explained that a
motivation to combine references can be found in various sources other than the specific prior art references cited. Dystar, slip
op. at 7-8 (“The motivation need not be found in the references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the nature of the problem itself.”). See also In re Napier, 55
F.3d 610, 613 (Fed. Cir. 1995). Moreover, this notion is not new. The Federal Circuit’s predecessor court stated “where it is
found necessary, [examiners] may take notice of facts beyond the record which, while not generally notorious, are capable of
such instant and unquestionable demonstration as to defy dispute.” In re Ahlert, 424 F.2d 1088, 1091 (C.C.P.A. 1970). The PTO
also understands the flexibility of the test, as its Manual of Patent Examining Procedure outlines the permissible guidelines for
the application of such knowledge. U.S. Patent & Trademark Office, Manual of Patent Examining Procedure, § 2144.03 (8th ed.
rev. 3d 2006) (“In limited circumstances, it is appropriate for an examiner to take official notice of facts not in the record or to rely on
‘common knowledge’ in making a rejection, however such rejections should be judiciously applied.”). The PTO may not solely rely
on such knowledge, but it may apply the knowledge to support evidence contained in the prior art. Id. Furthermore, the Federal
Circuit’s recent jurisprudence clearly puts to rest the erroneous charge that under the teaching-suggestion-motivation test,
judges or patent examiners will be unable to invalidate obvious inventions. In both Alza and Dystar, the Federal Circuit found the
contested claims to be obvious under the teachingsuggestion- motivation test. See also Christopher Anthony Cotropia,
Nonobviousness and the Federal Circuit: An Empirical Analysis of Recent Case Law, 82 NOTRE DAME L. REV. (forthcoming Feb.
2007), (manuscript at 24-25, available at http://papers.ssrn.com/so13/papers.cfm? abstract_id=933192) (finding no support for
suggestion that nonobviousness requirement has lowered significantly but, rather, that “if any bias exists, it is a bias towards finding
patents obvious, not nonobvious as most critics suggest”).
76
Patents Aff
PMA
DDI 2008 BQ
TSM Good
TSM Protects Innovators
As many amici in support of Petitioner have noted, the PTO is straining to accommodate the growth in the number of patent
application filings.9 Contrary to the suggestions of Petitioner and its amici, abandonment of the teaching-suggestionmotivation
test will do little to remedy this administrative problem. Most of the growth of the PTO’s workload has nothing to do with the
purported difficulty of invalidating patents on the basis of obviousness.10 On a percentage basis, the PTO actually rejects many
more patents now than it did 40 years ago. Between 1963 and 1965, the PTO received 284,103 applications and granted 166,007
patents, about a 58% grant rate. Between 2003 and 2005, the PTO received 1,165,690 applications and granted 526,034 patents,
actually producing a lower grant rate of 45%. See U.S. Patent and Trademark Office, U.S. Patent Statistics Chart Calendar Years
1963-2005 (2006), available at http://www.uspto.gov/go/taf/us_stat.htm. Moreover, the Solicitor General advocates: The PTO should
instead be allowed to bring to bear its full expertise—including its reckoning of the basic knowledge and common sense
possessed by persons in particular fields of endeavor—when making the predictive judgment whether an invention would
have been obvious to a person of ordinary skill in the art. The patent applicant should bear the burden of proving PTO’s
Board and examiners wrong. Brief for the United States, at 26 (emphasis added). How exactly an inventor is supposed to disprove
a “reckoning” of the PTO or a court is left unexplained. While the Federal Circuit’s recent jurisprudence notes that “common
knowledge” may support a finding of obviousness, the evaluator must clearly explain any such evidence relied upon. See
Dystar slip op. at 17. Such reasoned findings by an evaluator are far from the type of essentially unsubstantiated analysis the
Solicitor General suggests. Stripped of the certainty and predictability of the Federal Circuit’s teachingsuggestion- motivation
test, inventors will be subject to the capriciousness of examiners and judges who, if the test is removed, will be susceptible to
the irresistible temptation of hindsight analysis.
77
Patents Aff
PMA
DDI 2008 BQ
TSM Good
TSM Effectively Determines Obviousness
Making a determination based on what would have been obvious at the time the invention was made is the most difficult
requirement of the decision making process under §103. This requires the decision maker to cast his mind back to the time the
invention was made -- a task easier said than done. Graham tells what features to look at, but not how to assess them. The
teaching-suggestion-motivation approach does just that. The Federal Circuit and its predecessors recognized the danger of a
hindsight approach to assessing obviousness. In practice, Federal Circuit jurisprudence requires the patentability challenger
to “explain the reasons one of ordinary skill in the art would have been motivated to select the references and to combine them
to render the claimed invention obvious.” In re Kahn, 441 F.3d at 986. Absent some other rational articulation founded in
fact, when the challenger of patentability fails to explain the motivation, the suggestion or the teaching that would have led the
skilled artisan at the time of the invention to the claimed combination at a whole, the presumption is that the conclusion was
reached through the improper benefit of hindsight. Id. at 986-87. This is not a separate approach from the Graham inquiries.
Rather, it simply is a practical approach to assessing them to assure that the nonobviousness analysis is evaluated from the
correct perspective. Amici believe that the teaching-suggestion-motivation approach to the ultimate conclusion on
nonobviousness is subsumed in the inquiry laid out in Graham. Graham presumes the factors interrelate. Ultimately, the
factors must serve the statutory end--to determine whether the subject matter as a whole would have been obvious to one
skilled in the art at the time of the invention. The analysis necessarily requires inquiry into what the scope and context of the
prior art taught or suggested to those skilled in the art. Without such assessment, the Graham factual inquiries do not
accomplish the purpose of 35 U.S.C. §103. The mere identification of the level of skill in the art means nothing unless the prior
art is to be evaluated from the standpoint of that level of skill (i.e., what the prior art teaches the person of ordinary skill in the art).
Further, the teaching-suggestion-motivation approach focuses the inquiry on the requirements of §103 by ensuring that any
obviousness conclusion is reached from the perspective of the time frame of when the time the invention was made, and not
through hindsight. The teachingsuggestion- motivation approach takes into account each of the Graham factual findings. The
approach ensures that the challenger of patentability identifies some evidence that supports a finding that the conclusion of
obviousness was based on what a person of ordinary skill would have been led to do, and thus found obvious, at the time the
invention was made. Then like any question of law, the decision maker must properly weigh all of the underlying facts in
reaching the ultimate conclusion on nonobviousness. Any approach to reaching the obviousness conclusion that requires a
patentability challenge to articulate a rational basis founded in fact for their conclusion of obviousness does not change a
question of law into a question of fact.
78
Patents Aff
PMA
DDI 2008 BQ
TSM Good
The TSM system is the most predictable way to determine patentability.
RESPONDENTS, 2006
The purpose of the motivation-to-combine standard applied below is simply to require that a determination that a
combination of known elements is obvious be justified with reference to specific facts that motivate (either explicitly or
implicitly) the combination. This insistence rigorously avoids hindsight, and makes it possible to predict with sufficient
confidence whether a patent application will be denied or an obviousness challenge will be upheld in court. The objective
nature of the inquiry, moreover, permits the applicant and the examiner to have meaningful conversations about the
application, just as it permits prospective patent licensors and licensees, or buyers and sellers, to have meaningful discussions
about validity.
The incentives created by patents increase innovation but only under the predictable TSM system.
RESPONDENTS, 2006
It is the combination of incentives created by the patent system that allows small entities like a number of the undersigned
amici to compete in the contemporary American economy, and to foster further innovation. Without protection for
their intellectual property, smaller firms would be unable to attract financing and survive. The result would be greatly
diminished diversity and therefore less innovation. See, e.g., U.S. SMALL BUSINESS ADMIN. OFFICE OF ADVOCACY,
FREQUENTLY ASKED QUESTIONS 1 (2005), http://www.sba.gov/ advo/stats/sbfaq.pdf (Small businesses “[p]roduce 13 to
14 times more patents per employee than large patenting firms. These patents are twice as likely as large firm patents to be
among the one percent most cited.”); WENDY H. SCHACHT & JOHN R. THOMAS, PATENT REFORM: INNOVATION ISSUES
10 (Congr. Res. Serv. July 15, 2005) (describing individuals and small entities as “a significant source of innovative products
and services”). The contributions to the commercial marketplace of such smaller firms depend on those firms’ ability to form
contracts based on their intellectual property rights. Those contributions, moreover, are facilitated by the existence of
intermediaries that specialize in the valuation, licensing or sale, and, when necessary, enforcement of intellectual property
rights. The entire economy thus benefits when the market for intellectual property rights is as liquid and transparent as
possible. Each of the undersigned amici, therefore, is a living illustration of the proper functioning of the patent system. In
different ways, each forms part of a cyclical ecology in which invention is encouraged and commercialization is made possible
by the availability of capital in conjunction with the ready transferability of intellectual property rights. For this system to
work, however, patent validity must be predictable at every stage. Investment in innovation is chilled when
patentability is not predictable. “When decisions are being made [in the board or budget committee room], the gambler’s
spirit is low and any minor cold water on a request for research” – including uncertainty in the patent laws – “is apt to militate
against a favorable research decision.”3 Similarly, without predictability, investors will be less likely to back independent
innovators at both the pre-application and postapplication stages. See Br. of IBM Corp. in Support of Neither Party 4
(without clarity and predictability respecting patentability, “the public cannot discern the scope of the patent until after all
infringement litigation has concluded and will not invest in innovative products that might potentially fall within the patent’s
scope”). Licensing transactions will become less efficient because the parties will have poor information about the value of the
right being bargained for.4 In short, without predictability as to validity and patentability, innovation would suffer. The
only winners would be a small subset of corporations – including the computer industry players supporting petitioner here –
that do not depend on the patent system because they are so dominant.
79
Patents Aff
PMA
DDI 2008 BQ
TSM Good
The TSM Test is predictable, objective, and an effective tool against hindsight bias.
Amici believe that the Federal Circuit’s flexible “motivation, suggestion, or teaching” test provides such predictability
for the inherently subjective obviousness standard. The Federal Circuit’s test provides an objective, yet flexible,
evidentiary framework for obviousness determinations to guard against hindsight subjectivity. The Federal Circuit’s
flexible “motivation, suggestion, or teaching” test requires specific evidence showing why one skilled in the art would have
had a reason to combine or modify the prior art to reach the claimed invention. In other words, a claimed invention cannot be
held obvious just because it seems so after the fact to a patent examiner, judge, or jury.
The TSM test has been successful for a quarter of a century, and guards
against subjectivity, hindsight bias, and arbitrariness.
Amici support the Federal Circuit’s current “motivation, suggestion, or teaching” test as the exclusive standard for
determining whether or not prior art may be combined or modified to conclude that a claim in a patent or patent application
would have been obvious to a person of ordinary skill in the art at the time the invention was made.2 For the past quarter of a
century, this test has offered an objective, yet flexible, evidentiary standard on which patentees and the public have come
to rely. The test, flexible in theory and application, is an evidentiary standard that guards against the danger of
hindsight bias and the risk of arbitrary decision-making. Contrary to arguments raised against it, this test does not require
an express teaching in the prior art to combine or modify the cited references. Rather, it requires no more than the
identification of supporting evidence or the articulation of the reason that a hypothetical skilled artisan would have
been expected to come up with the patented invention. This objective evidentiary framework prevents patent
challengers from picking and choosing disparate ideas out of the prior art, and simply lumping them together without
explanation, to re-create a patented invention.
Studies Prove that Hindsight Bias is a Very Real Problem in Patent Cases and
the KSR decision has made that more of a problem.
If the Court eliminated the “motivation, suggestion, or teaching” standard, obviousness determinations would become
subject to unfettered subjectivity and resulting unpredictability. There would be no evidentiary safeguard against
hindsight bias in obviousness determinations by patent examiners, judges, or juries. Hindsight bias is a very real problem
when a factfinder makes an after-the-fact determination regarding obviousness. As numerous empirical studies in litigation
and other contexts have demonstrated, factfinders aware of a certain outcome are significantly more likely to fall prey
to hindsight bias and incorporate expectations about the outcome in their decisions. Moreover, the Federal Circuit’s 25
years of jurisprudence applying the “motivation, suggestion, orteaching” test has created settled expectations in the inventive
and business communities. Changes to such settled rules of law involve numerous policy considerations, which should be left
to Congress rather than the courts.
80
Patents Aff
PMA
DDI 2008 BQ
TSM Good
No better alternative to the TSM test has been proposed.

Finally, although no one claims it is perfect, the Federal Circuit’s “motivation, suggestion, or teaching”
test is superior to the alternatives presented in this case by KSR and its amici. Taking one example in particular, the
Government’s proposed “extraordinary level of innovation” test does not find support in this Court’s precedent,
provides no meaningful or objective guidance to the Patent & Trademark Office, to courts or to parties appearing
before them, and does nothing to guard against the risk of hindsight bias in obviousness determinations. By injecting
added subjectivity into the determination, the Government’s proposed test would exacerbate the risk of hindsight and
arbitrary decision-making on the question of obvious/nonobviou
The TSM test is the best way to objectively asses the obviousness of an
invention
Westlaw.
It is notable that while criticizing the MST test, neither petitioner nor its supporting amici have offered alternative
guidelines that permit an evaluation of obviousness based on objective evidence to show what one of skill in the art
could or could not readily deduce from the prior art. Several amici suggest that the Court should reject the MST test and
return to the Graham standard. But those amici have not offered any guidelines on how the differences between the claimed
invention and the prior art should be assessed in view of the level of skill in the art to answer the statute's question: “Would the
invention have been obvious?” The “no standard” approach amounts to an amorphous standard that will not achieve the
congressional purposes of bringing stability and uniformity to the patent law. Furthermore, the parties urging the “return to
Graham” fail to see that the MST test is nothing more than a rule of evidence for implementing the Graham standard.
Others offer tests that effectively presume that anything that consists of a combination of items found in the prior art
can be readily deduced by one of ordinary skill in the art. This Court has long rejected that premise, see Section II, infra,
nor does that premise provide meaningful guidance for evaluating the Graham factors.
81
Patents Aff
PMA
DDI 2008 BQ
TSM Good
TSM includes an “evidentiary standard” that allows judges and juries to make
the best decisions.
In litigation, this evidentiary standard provides meaningful guidance to juries and judges, helping them to overcome
hindsight and truly base their conclusions on the art “at the time the invention was made.” 35 U.S.C. § 103(a). Rather
than imposing an unnecessary hurdle, this flexible evidentiary standard merely requires the party challenging the validity of a
patent, which enjoys a statutory presumption of validity, 35 U.S.C. § 282, to explain to the factfinder what would have caused
or “motivated” the skilled artisan to bridge the gap between the prior art and the patented invention. This evidentiary standard
respects the statutory presumption of validity and ensures that the burden of proof remains on the party designated by law and
precedent. This evidentiary standard is likewise crucial to orderly and proper appellate review from agency or court decisions.
Without the standard’s guidance and the requisite identification of some evidence justifying the combination of prior art,
appellate review would become a pure guessing-game, rather than the appropriate scrutiny required by applicable law, rules,
and precedent. See Dennison Mfg. Co. v. Panduit Corp., 475 U.S. 809-811 (1986) (vacating nonobviousness
determination because the Federal Circuit failed to apply the standard of Fed. R. Civ. P. 52(a) to the factual determination of
the district court). Without this evidentiary standard, patent applicants and litigants would be left at the mercy of an
agency, or a judge’s or jury’s decision, even if arbitrary or animated more by hindsight bias than the ex ante inquiry
required by the statute. Effective appellate review of such decisions would be difficult, if not impossible, given the lack
of any meaningful evidentiary standard by which to review the decision that one skilled in the art would have been
motivated to combine or modify the prior art to arrive at the claimed invention.
82
Patents Aff
PMA
DDI 2008 BQ
TSM Good
Hindsight Bias Makes Objective Determination of Obviousness Difficult Without TSR
In patent law, unchecked hindsight bias would threaten the careful incentives created by the statutory scheme. With the
benefit of hindsight, many inventions, which were exceptional when discovered, may appear today to be unremarkable.
For example, although the wheel or the number zero are obvious concepts today, the Incan civilization never used the wheel,
while the Greek and Roman civilizations never discovered the algebraic zero. More recently, today Post-it® Notes may seem
to be obvious, but that is only because they have been nearly ubiquitous in our daily lives for 25 years. Further backing these
examples is a recent empirical study demonstrating that hindsight bias prejudices patent decisions, including
obviousness determinations, far more than anticipated. G. Mandel, Patently Non-Obvious: Empirical
Demonstration that the Hindsight Bias Renders Patent Decisions Irrational, 67 OHIO ST. L.J. ___ (2006)
(forthcoming). Because today’s inventions are merely combinations of yesterday’s knowledge, all the elements of a
patent claim can ultimately be found— piece-by-piece—in the prior art and deemed obvious, once combined, under the
influence of this cognitive bias. Cf. Graham, 383 U.S. at 36 (noting that secondary considerations “may also serve to guard
against slipping into use of hindsight, and to resist the temptation to read into the prior art the teachings of the invention in
issue.” (internal quotation marks and citations omitted)).
The TSM test has been applied successfully for many years and is consistent
with congressional statutes.
To implement the statutory requirement that courts must perform an ex ante
obviousness inquiry, the Federal Circuit and its predecessor courts adopted the “motivation, suggestion, or teaching”
test as a prophylactic against hindsight bias. By faithfully applying this test across a myriad of technologies and factual
circumstances, the Federal Circuit promotes the legislative command of determining obviousness “at the time the invention
was made.” Rather than being inconsistent with the statute, this test actually advances Congress’s aim of imparting
“uniformity and definiteness” to patentability determinations.
83
Patents Aff
PMA
DDI 2008 BQ
TSM Good
Other Proposed Standards for determining obviousness are inferior to the TSM test
To replace the Federal Circuit’s “motivation, suggestion, or teaching” test, KSR’s amici have advanced various
alternatives, including: (i) the Government’s focus on “extraordinary level of innovation”; (ii) IBM’s rebuttable
presumption; and (iii) KSR’s abandoned “synergy” idea from its petition. Although each of these proposed standards may
appear attractive on the surface, a more careful scrutiny reveals their inadequacy. While the Government advocated a case-
by-case test in its petition-level brief, it now espouses another—albeit equally problematic—standard: “whether the
claimed invention manifests the extraordinary level of innovation, beyond the capabilities of a person having ordinary
skill in the art, that warrants the award of a patent.” Gov’t Amicus Br. at 10 (emphasis added). This test is, however,
flawed for three reasons. First, it does not flow from this Court’s own precedent. Indeed, the Solicitor General does not cite a
single Supreme Court case which turned on the determination of an extraordinary level of skill in the art. See id. at 11-24.
To the contrary, the statute and this Court have consistently anchored the obviousness inquiry on whether the person having
ordinary skill in the relevant art would deem the invention obvious. 35 U.S.C. § 103(a); Graham, 383 U.S. at 17;
Hotchkiss, 52 U.S. at 267 (determining skill level of the “ordinary mechanic”). Second, the proposed inquiry does not
provide any meaningful, objective guidance to the courts, agencies, litigants, or applicants. After all, whether an invention
resulted from an extraordinary or ordinary level of skill is subjective and a matter of degree, boiling down to a “I’ll know it
when I see it” standard. Under such a subjective standard, reasonable minds—be it patent examiners, juries, district
judges, or circuit judges—may and will differ widely. Finally, the Government’s test does not resolve the hindsight bias
prohibited by 35 U.S.C. § 103(a) and this Court’s precedent. At best, the proposed test merely condones an ex post
adjudication of the patent’s contributions by improperly raising the required skill level of an inventor.
84
Patents Aff
PMA
DDI 2008 BQ
TSM Good
TSM is the best test of obviousness because it looks at the explicit and
implicit.
The requirement that there be a teaching, suggestion, or motivation to combine elements in the prior art is a useful and
appropriate way to provide objectivity and avoid hindsight in obviousness determinations. The teaching suggestion-
motivation inquiry is deeply rooted in case law and finds support in this Court’s decision in Graham v. John Deere Co.,
383 U.S. 1 (1966). The inquiry looks to both the explicit and implicit teachings of the prior art, the explicit and implicit
knowledge of the skilled artisan, and the nature of the problem to be solved. The particular manner in which implicit
teachings and knowledge may be used in an evidentiary-based analysis, though not developed in the opinion on review, is
clearly developed in other Federal Circuit opinions.
TSM has been widely approved of

The teaching-suggestion-motivation inquiry has been widely approved of by knowledgeable commentators. The inquiry
has been described as a “well-established obviousness guideline”7 and “an established element in the obviousness
determination.”8 One commentator identifies the characteristic objectivity of the teaching-suggestion motivation
inquiry, ensuring “the decision-maker will not substitute her own judgment” for that of the hypothetical person skilled
in the art.
The repeal of the TSM system would caused great expense and
unpredictability within the patent system.
Without a teaching-suggestion-motivation inquiry, the courts, patent examiners, and litigants would be left with little guidance as to
the manner in which the Graham factors should be weighed when combination issues arise. As the ultimate issue of obviousness is
a question of law12 warranting de novo review on appeal, if this Court reverses firmly established precedent, the Federal
Circuit could expect a flood of appeals from district courts and from the Patent and Trademark Office. Such an environment
also would increase the frequency and expense of patent litigation because parties would be hard put to predict how a court
would rule on validity
85
Patents Aff
PMA
DDI 2008 BQ
TSM Good – Flexible
TSM Is Flexible. Criticisms Of Its Strictness Are Unjustified
The teaching-suggestion-motivation approach is not rigid in its application. The teaching-suggestion-motivation approach
ensures that the decision is based on evidence and not on conclusory statements, speculation, conjecture, negative rules,
rhetorical embellishments or talismanic slogans. Supporting evidence for the articulated rationale may be explicitly or implicitly
found in the facts developed by the Graham inquiry. The supporting evidence, thus, need not contain an express teaching,
suggestion or motivation. Typically, evidence of motivation may be found in the first of the Graham factors - the scope and
content of the prior art. In the absence of an express suggestion to combine, evidence of motivation may also be found in facts
developed under the third Graham factor - the level of skill in the pertinent art. Dystar Textilfarben GmbH, No. 06-1088,
slip op. at 26. The motivation can be implicit in the knowledge of one of skill in the art or in some cases, the nature of the
problem to be solved. Cross Med. Prods., Inc. v. Medtonic Sofamor Danek, Inc., 424 F.3d at 1321. Evidence supporting
motivation may come from testimony of persons skilled in the art, Alza Corp. v. Mylan Labs., No. 06-1019, slip op. at 13, or
from the application or patent itself. Cross Med. Prods., Inc., 424 F.3d at 1323. Motivation can even be founded in common
sense. In re Bozek, 416 F.2d 1385 (C.C.P.A.1969). Thus, the Federal Circuit approach to evaluating obviousness is flexible
both in the rationale required and the means of providing evidence necessary to support the ultimate conclusion of
obviousness. The Federal Circuit has been criticized by some commentators in rigidly adhering its teaching-
suggestionmotivation approach to determining obviousness. Dystar Textilfarben GmbH, No. 06-1088, slip op. at 16-23. The
criticisms are based largely on the misreading of selective quotations from certain cases. Contrary to the criticisms, the Federal
Circuit has consistently and flexibly applied its approach. The criticism should properly lie not with the approach, but with
the failure of patentability challengers to provide supporting evidence or adequately explain their rationale supporting the
obviousness conclusion. Id. Petitioner and some amici argue the approach lowers the standard of patentability. But, the
approach itself does not lower the standard for patentability.
86
Patents Aff
PMA
DDI 2008 BQ
TSM Works
The Court Has Effectively Implemented TSM In The Past
Contrary to the contention of Petitioner and several amici on behalf of Petitioner, the teaching-suggestion-motivation approach to
the ultimate conclusion on nonobviousness is not a creation solely of the Federal Circuit and its predecessors. Although cloaked
in different terms, the Court has, at least once, used a teaching-suggestion-motivation approach in making the ultimate
conclusion on nonobviousness.11 In United States v. Adams, 383 U.S. 39 (1966), the patent at issue involved a battery
comprised of two electrodes – one made of magnesium and the other of cuprous chloride. The electrodes were placed in a container
with an electrolyte that could be water or salt water. In reviewing the scope and content of the one of the prior art references, the Court
took note that a Wood reference recognized that the difficulty with magnesium electrodes is their susceptibility to chemical corrosion
and that there “is no indication of its use with cuprous chloride, nor was there any indication that magnesium battery could be
water activated.” (emphasis added). Id. at 46 It is important to note that the term “indication” is synonymous with the term
“suggestion.” The J.I. Rodale Synonym Finder, (1979). With respect to a Codd reference, the Court found, Id. at 46-47: In
short, Codd indicates, by inference only that magnesium is a theoretically desirable electrode by virtue of its highly electropositive
character. He does not teach that magnesium could be combined in a water-activated battery or that a battery using magnesium
would have the properties of the Adams device. Nor does he suggest, as the Government indicates, that cuprous chloride could be
substituted for silver chloride. He merely refers to the cuprous ion – a generic term which includes an infinite number of copper
compounds – and in no way suggests that cuprous chloride could be employed in a battery. [emphasis added] With respect to a
Wensky patent, the court noted that “there is no indication that he taught a water-activated system or that magnesium could be
incorporated in a battery.” Id. at 67 (emphasis added). The Court reviewed the scope and content of the prior art references to
determine what the prior art taught or suggested. The Court noted that that the references and the accept wisdom and knowledge of
persons skilled in the art “taken together, would … deter any investigation into such a combination as is used in Adams.” Id. at 52.
(emphasis added). But, examining deterrence of investigation is the same as examining the motivation under the current approach.
Being deterred from investigating a combination or making a combination is the antithesis of being motivated. The Court plainly
applied the teaching-suggestion-motivation approach to reaching the ultimate conclusion of nonobviousness in Adams without
specifically articulating it in those terms.12 The Solicitor so much as agrees.
87
Patents Aff
PMA
DDI 2008 BQ
AT: TSM Too Restrictive

TSM doesn’t require written motivation – evidence of motivation can be found
explicitly or implicitly.

04-1350 (U.S. Oct. 12, 2006)
Petitioner and supporting amici maintain that the TSM analysis imposes a virtually insurmountable burden, requiring an
explicit, written motivation specifically proposing the precise combination of prior art that leads to the claimed invention. See
note 8, supra. It has no such requirement. The Federal Circuit explicitly has recognized that a written motivation is rare. In re
Johnston, 435 F.3d 1381, 1385 (Fed. Cir. 2006) ("An explicit teaching that identifies and selects elements from different
sources and states that they should be combined in the same way as the invention at issue, is rarely found in the prior art.") The
TSM approach "does not provide a rule of law that an express, written motivation to combine must appear in prior art
references before a finding of obviousness." Ruiz v. A.B.
Chance Co., 357 F.3d 1270, 1276 (Fed. Cir. 2004). The Federal Circuit has rejected such a rule: [Applicant] urges this court to
establish … [that] references may not be combined … absent an express suggestion in one prior art reference to look to another
specific reference. We reject that recommendation as contrary to our precedent which holds that for the purpose of combining
references, those references need not explicitly suggest combining teachings, much less specific references.
In re Nilssen, 851 F.2d 1401, 1403 (Fed. Cir. 1988), citing In re Sernaker, 702 F.2d 989, 995 (Fed. Cir. 1983), and In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). It simply requires evidence that there is a reason one of ordinary skill would
have contemplated the combination before reading the patent's disclosure, to ensure that the analysis is not based on
hindsight.14 As the TSM analysis evolved, Federal Circuit panels sometimes have applied a more rigorous standard, at times
even requiring a writing. This stringency has not been commonly applied and appears to be fact-specific to the case. Some have
sought to characterize this as an absolute rule,15 but AIPLA believes that these decisions should not be read to require a strict
writing requirement. See, e.g., Dystar Textilfarben GmbH, v. C.H. Patrick Co., No. 06-1088, -- F.3d --, slip op. at 15-26 (Fed.
Cir. Oct. 3, 2006).
The TSM analysis looks for a reason to combine prior art; that reason can be found explicitly or implicitly in the prior art, it
can flow from the nature of the problem solved by the invention, or it can come from the knowledge of those skilled in the art
at the time of the invention. In re Kahn, 441 F.3d at 988; see also, SIBIA Neurosciences, Inc. v. Cadus Pharm. Corp., 225 F.3d
1349, 1356 (Fed. Cir. 2000). So long as there is a reason to combine there are no hard and fast rules. (There are numerous cases
where patent claims have been found invalid or unpatentable for obviousness without any explicit written motivation, as set out
in the footnote.16) In keeping with Graham, 383 U.S. at 17, the TSM methodology is flexible. In re Johnston, 435 F.3d at 1385
("Many factors are relevant to the motivation-to-combine … such as the field of the specific invention, the subject matter of the
references, the extent to which they are in the same or related fields of technology, the nature of the advance made by the
applicant, and the maturity and congestion of the field.")
Petitioner asserts that the TSM analysis can be satisfied only by an explicit writing is wrong. Applying TSM requires a non-
hindsight reason, nothing more.
88
Patents Aff
PMA
DDI 2008 BQ
A2: T Patents aren’t incentives

1. The availability of patents in itself is an incentive as is the post filing
monetary benefits That means we meet. That’s Robbins 06 from the 1AC.
Counter interpretation – The Quality Assurance Project (QAP), U.S. Agency for International Development (USAID), 2008,
http://www.qaproject.org/methods/resglossary.html
Incentive
A tangible or intangible reward that is designed to motivate a person or group to behave in a certain way. For example,
in an effort to reduce fertility, community health workers may be given a small amount of money for each woman they refer to
the health clinic for family planning services.
2. The Pre-KSR Patent System was an incentive for the creation of

innovative inventions.
Innovation is the lifeblood of the American economy, and the patent system fosters it by creating incentives for the
creation, disclosure, and ultimate commercialization of inventions. The protections afforded by the grant of property
rights in inventions enable small entities like the undersigned amici to survive, compete, and innovate. For the system to
work properly, however, patentability at the procurement stage and patent validity after issuance must be
predictable. If there is no clear understanding of what is and is not patentable, investment in innovation will be
chilled, and the ready transfer of technology will be inhibited. In fact, the basic purpose of 35 U.S.C. § 103 was to
create “uniformity and definiteness.” Graham v. John Deere Co., 383 U.S. 1, 17 (1966). To the chagrin of industry, that
purpose was undermined by developments that followed this Court’s decision in Graham and helped prompt the creation
of the Federal Circuit in 1982. Also crucial to any regime of patentability is that the determination not be based on
hindsight. The government and other amici downplay this phenomenon, but it is in the nature of many important technical
advances to appear obvious and even inevitable in retrospect. The motivation-to-combine standard achieves these crucial
goals, and does so by rendering the obviousness determination as objective as reasonably possible. The standard, which is
consistent with international norms and rooted in decisions that long predate even Section 103, is precisely the sort of
workable refinement that lower courts are supposed to develop in every area of the law. The standard, moreover, has
never been as inflexible as petitioner and its amici suggest. And even if it were, the rational approach would be not to
jettison the standard and start from scratch but rather to emphasize that implicit as well as explicit motivations satisfy the
standard. If the existing standard were abandoned in favor of the proposals\ urged by petitioner and its amici, then, to the
detriment of American competitiveness, countless deserving inventions would never have been protected, and, in
the future, will never be protected. Relatedly, petitioner’s amici’s proposals would wreak havoc in the business world
by calling into question enormous numbers of issued patents and inviting endless litigation over patent validity.
3. Counter Standards
a. Limits –we solve all their limits arguments we just allow for one more case.
b. Education- Our interpretation integrates ideals of academic programs with decision making – allows
for the best form of education on the issue
89
Patents Aff
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DDI 2008 BQ
c. Under limiting is good – it allows for a more inclusive definition of incentives that makes it more
meaningful
d. Ground- we give them more debates on patent regulation and alternative energy and innovation issues
which increases cp, disad and kritik ground.
e. Real world-current definition of incentives is beyond material or funding.
5. Counter interpretation-only our case is topical. Solves back all their standards.
6. Competing interpretations is bad

a. infinitely regressive-they can always find an interpreation that limits out one more case killing
fairness
b. race to the bottom-it makes whichever interpretations limits out more better which kills aff
ground
7. Evaluate competing interpreations in terms of reasonability-they have to prove our interpreation is

unreasonable to win
a. Fairness- Aff needs leeway on such issue in order to debate because neg is allowed a mixture of
arguments yet the aff is stuck to a singular advocacy placing aff under stringent inflexible
parameter destroy aff debatability and debate itself.
b. Topic specific education-focuses education on topic specific issues
c. Real world education-we don’t learn anything useful from debating interpretations
d. No intervention-if our interpretation is reasonable, don’t vote on t, its that simple
8. Potential abuse isn’t a voter- it’s like voting on a potential disad. Clash and literature solves back their
abuse arguments.
9. Limiting ‘incentive’ is bad ---
1) Neg side bias ---
A) Negation theory is widely accepted and means they can run as many conditional advocacies as they
wish, this makes giving effective 2AC’s impossible.
B) Under limiting solves – it ensures that the aff has the most specific evidence against counterplans and
defense against kritiks
2) Education – Accepting a lot of cases provides the incentive for affirmatives to have more specific in-
depth literature as much as possible inorder to find a creative aff. In effect negs will be more specific and
innovative because teams will be more specific
90
Patents Aff
PMA
DDI 2008 BQ
A2 T-F/X
1. We meet-Plan brings an incentive into existence-increasing the number of alternative energy incentives in the U.S
2. Counter Interpretation-only repealing patent restrictions in the area of alternative energy is an increase in alternative
energy incentives
3. Cross-apply we meet
4. Prefer our interpretation-It’s within the context of the resolution because everyone gets patents when they develop a
new form of alternative energy
5. Counter Standards
a) Limits-F/X is inevitable plans can’t magically increase incentives in one step. There will always be a process
of steps that eventually lead to an increase. Means they limit the topic to zero. C/I limits the topic down to one
incentive. Prefer over limiting before under limiting-it provides an in-depth analysis on one incentive and all
the innovative alternative energies that stem from it
b) Predictability-C/I is more predictable. The KSR decision was the biggest patent court case to date- it
provided an overhaul on patent restrictions. Patents are a prerequisite to any new form of alternative energy.
c) Ground- Our plan is the internal link to any educational debate-you need to remove patent restrictions in
order for an affirmative to get ground. Otherwise it leads to stale one-sided debates turning education.
d) Prefer innovative forms of alternative energy before existing ones because 1. (Insert AE sucks now) 2.
Innovative forms of alternative energy are modifications of the existing (insert card) guaranteeing better
debates about the same topics
6. Potential abuse is not a voter-They can’t prove what we’ll do in future rounds, judge us by the context of the round
7. Fairness is not a voter-it’s vague and arbitrary. What’s fair to one could be unfair to another forcing judge
intervention
91
Patents Aff
PMA
DDI 2008 BQ
AT: States
The Federal Government Has Total Control Over The Patent System For
Uniformity And For Encouraging Innovation
Dean L. Fanelli, et al Ph.D., Victor N. Balancia, Robert J. Smyth, Ph.D., Carl P. Bretscher, Arthur M. Antonelli******, Mark J.
Sullivanand Kent E. Basson. 2008 American University Law Review. “A REVIEW OF RECENT DECISIONS OF THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT: AREA SUMMARIES: 2007 PATENT LAW DECISIONS OF
THE FEDERAL CIRCUIT.” < http://www.lexisnexis.com/us/lnacademic/auth/checkbrowser.do?
This year marks the twenty-fifth anniversary of the establishment of the Federal Circuit. One of the primary goals in creating the
court was to foster uniformity in the application of the patent laws in order [*825] to promote innovation and further
technology. n5 "National uniformity in the application of the patent laws was perceived as a way of reducing uncertainty
regarding the validity of patents[,]" thereby increasing their value and the incentives to invent and disclose, ultimately
enhancing technological innovation in the United States. n6 Such innovation would "benefit[] consumers through the development
of new and improved goods, services, and processes." n7 "An economy's capacity for invention and innovation helps drive its
economic growth and the degree to which standards of living increase." n8 "Competition and patents stand out among the
federal policies that influence innovation." n9 The idea of granting exclusive rights to inventors in order to stimulate innovation
was well-established when the Constitution was drafted in 1789. Indeed, among the explicit powers granted to Congress by the
Constitution is the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries." n10 "The Patent Clause itself reflects a balance
between the need to encourage innovation and [to avoid] monopolies which stifle competition without any concomitant
advance in the "Progress of Science and useful Arts.'" n11 The same balance has been embodied in the federal patent laws since
their inception, for they reward innovation while recognizing that imitation and refinement of those innovations are also
necessary both to "invention itself and to the very lifeblood of a competitive economy.
92
Patents Aff
PMA
DDI 2008 BQ
A2: Funding CP
The innovation spurred by patents is key, funding alone doesn’t solve
Robyn Williams Broadcast 13/2/00 http://www.abc.net.au/rn/science/ockham/stories/s98911.htm
Innovation is costly, risky, unpredictable and complex. So why is it so important, and why does so much depend upon it?
There is plenty of research showing the importance of innovation for business success, job creation and higher
standards of living. For us to understand why this is so, we have to understand the nature of leading-edge industry and
services. We need to think about intense, international competition; rapidly changing markets; decentralised network-
based and highly flexible firms' and competitiveness derived not so much from tangible assets like capital investments,
but from intangible assets like skills, creativity and the ability to learn. These are features of what has been called the
'knowledge economy'.
It is innovation that transforms these intangible skills into economically valuable activity. As knowledge becomes the
basis for economic competition, innovation becomes important for all firms, large and small. Even the smallest firm can
be innovative, and traditional industries can transform themselves through innovation. The mining industry in Australia,
for example, is seeing remarkable innovations emerging from small firms in areas like exploration and environmental
management.
93
Patents Aff
PMA
DDI 2008 BQ
A2: Funding CP
Government Funded R&D Doesn’t Work
Joseph A. DiMasi, Ph.D.* and Henry G. Grabowski, Ph.D.** *Tufts Center for the Study of Drug Development, Tufts
University **Department of Economics, Duke University June 25, 2004,
http://www.who.int/intellectualproperty/news/en/Submission3.pdf
HL suggests that governments use directed funding of drug development as a possible mechanism for compensating
R&D effort. They speculate that current academic funding (via, for example, the NIH structure) could be expanded or that
specific work be contracted for with existing pharmaceutical companies (thereby turning innovator firms into contract research
organizations [CROs] supplying research services to the government). There are a number of well-known problems with
directed R&D funding in general (Kremer, 1998; Shavell and van Ypersele, 2001), and at least one that can be particularized to
pharmaceutical R&D. �As discussed in the economic literature, R&D contracts are subject to asymmetric information and
principal–agent problems. In particular, R&D organizations are not only likely to have better information about
scientific opportunities, but may also possess different motives and agendas than politicians and program
administrators. This, in turn, can lead to moral hazard (a misalignment of incentives) and adverse selection problems.1
� Adverse selection can occur both in terms of what disease categories are funded and what organizations are selected to
undertake the projects. Program administrators are likely to have difficulties in assessing which scientific opportunities
are the most promising and what groups are best at doing the R&D projects. These opportunities are subject to
significant uncertainties and costly investment outlays before one can ascertain whether effective drug products can be
developed. In such an environment, decision makers may end up funding programs with very low chances of success or
alternatively failing to fund promising programs because they do not conform to established theories and paradigms. �
Adverse selection can also result, due to political rent-seeking and related considerations. Under a centralized government
system of research expenditures, lobbying by those groups that are better organized politically can distort the direction of
research to better suit their particular needs. The history of weapons research and procurement is filled with numerous
examples of cost inefficiencies related to this and other factors. See, for example, Klein (1962), Marschak, et al (1967), and
Peck and Scherer (1962). Moreover, once programs are in place, it becomes difficult to shut down failed or inefficient
projects due to local job market and other political considerations. � One particularly instructive example of these
adverse selection problems is the U.S. and Anglo-France experience with the supersonic transport (SST) aircraft programs.
This was an attempt to apply the military procurement model to the development of commercial aircraft (Eads and Nelson,
1971). The U.S. program was faced with numerous technical and commercialization problems as well as environmental
concerns. This ultimately led Congress to abandon the U.S. program in 1971. � The Anglo-French joint development of the
Concorde achieved some significant technical successes, but was beset by escalating government costs from its outset. After
nearly three decades of losses, the two governments recently terminated commercial flights. Mowery and Rosenberg (1982)
reflect on this case example of government supported R&D, and draw the following lessons: “The Concorde experience, which
proved to be a financial disaster, forcefully underlined the importance of the exercise of commercial judgments, and of
bolstering the incentive to exercise such judgments in high-technology industries such as aircraft. Establishing the purely
technical feasibility of an aircraft is very different from establishing its commercial feasibility. It is clear that the early phases
of the SST design paid no attention to prospective operating costs. (34) That was, of course, also true of the Concorde, which
had to be developed at a joint cost to the French and British governments of several billion dollars.(35) It is arguable that the
poor British performance in the aircraft industry in the post- World War II years was aggravated by the availability of large
government subventions that dulled the commercial judgment of development decision makers. (36)”
94
Patents Aff
PMA
DDI 2008 BQ
A2: Monetary Prize CP
Monetary prize don’t work its empirical and proven by multiple evidence
Prizes: An alternative mechanism that HL envision for funding R&D is a prize (award) system. Rather than paying for R&D
inputs, here the government pays an innovator a lump sum amount for its innovation that is then placed in the public
domain. There are also well known problems with prizes. Although its origins are in the very distant past, the award system
has been used very infrequently. � As is the case for direct funding of R&D, serious problems arise because the government is
unlikely to be able to value innovations properly. The incentives for innovators depend crucially on how the government
values innovations. Generally, private firms will be better informed about the potential value of innovations to
consumers and providers. � In the HL system, the differences between government and private valuations are likely to be
more pronounced than in the typical prize system, as they propose valuations that would overtly substitute a central authority’s
vision of what is socially useful innovation for what the market would value. As was the case with direct government funding
of R&D, the potential for political rent-seeking is great. � Prize systems are subject to what economists have called the
hold-up problem. The awards would typically be determined after an innovator has invested in developing an
innovation. The temptation is great for the award granting authority to offer prizes that are much lower than the true
value of the innovation. Since the innovator’s costs are sunk the innovator has little choice but to accede to the
expropriation of value. Such behavior by the award granting authorities, however, will greatly diminish the incentives
for innovators to engage in future R&D activities. � Under the current patent system, competition from closely
substitutable products (i.e., products in the same chemical family) often quickly emerges, providing gains to patients in terms
of both quality and price. It is difficult for a prize system to allocate shares of the market to follow-on competitors based on
their value to individual patients. In effect, one substitutes a regulatory process for a market-oriented one with all the
inefficiencies that can entail. � Overall, there is much less international experience with prizes as a means of
encouraging innovation than patents or research contracts. As noted, the old Soviet Union used prizes as a standard
method of motivating individuals in lieu of patents. The Soviet experience was characterized by low levels of monetary
compensation and poor innovative performance (Scherer, 1980, p.458; Artemiev, 1974; Hughes, 1946; Hughes, 1945). � A
more relevant example to the issues posed by HL involves awards to innovators under the U.S. Atomic Energy Act of 1946.
Under that Act, military uses of atomic energy were not patentable. Instead, the Act empowered a Patent Compensation Board
to award monetary compensation to individuals making inventions that had military applications to atomic energy. � In
evaluating this experience, F.M. Scherer draws the following conclusions. “There is an inherent conservative bias in the prizes
granted by administrative and quasi-judicial bodies. Munificence is a rare committee virtue. For example, the Atomic Energy
Commission’s Patent Compensation Board awarded the assignee of Enrico Fermi’s basic patent on the reproduction of
radioactive isotopes— forerunner of the methods for producing plutonium—a sum of $300,000 when the patent was dedicated
to the public. In an analogous case, the federal government agreed to pay $1 million as compensation for utilizing Robert H.
Goddard’s basic liquid rocket engine patents. During the life of the Goddard patents, U.S. expenditures on liquid-propelled
rockets amounted to roughly $10 billion. Compared to the value of the inventions and the profits that might have been earned if
exclusive patent rights could have been enforced, the Fermi and Goddard awards were miserly. They were certainly not what
Schumpeter had in mind in describing “spectacular prizes…thrown to a small minority of winners.” It is doubtful whether a
generalized reward system administered in this conservative tradition would motivate as much risk bearing as the patent system
presently does” (Scherer 1980, p.458).
95
Patents Aff
PMA
DDI 2008 BQ
Patents Good – Trade Secrets

Supreme Court rulings like KSR have tipped the scales towards keeping
innovation as trade secrets, encouraging less R&D and making existing
patents less reliable – biotech proves.
Nuala Moran, Bioworld Today Correspondent, BIOWORLD, “U.S. Patent Reforms Might Force Firms to Rely
on Trade Secrets,” Vol. 19, Issue 21, 6/23/08,
http://www.tradesecretsblog.info/2008/06/us_patent_reforms_might_force.html
SAN DIEGO - Recent Supreme Court rulings and reform at the U.S. Patent and Trademark Office (USPTO), coupled with
activity in the World Health Organization and the World Trade Organization, are weakening patents and tipping the scales
toward keeping innovation in biotech as trade secrets rather than risking patent disclosure.
"Most people would say the BIO [convention] is a love-fest for patents," said Michael Gollin, a partner at Venable LLP. "But
everywhere else people hate them. Even the USPTO has a disdain for patents," he told a session on 'The Rise of Trade Secrets
in Biotechnology," at the annual 2008 Biotechnology Industry Organization meeting.
While it would seem evident that industry in general ought to like patents, that is not the case. "The electronics industry has
come out against them," Gollin said, "which leads us to think about their value [in biotech]. They may be considered vital to
innovation, but the forces gathered against patents mean they are weaker and more difficult to enforce in the U.S. than 10 years
ago."
And although there have been improvements in patent protection elsewhere, notably in India and China, the ruling against
Novartis AG's Gleevec patent in India points to enforcement problems in those arenas too.
The flight away from patents can be seen in filing statistics. The number of chem/bio patents filed at the USPTO rose from
30,000 per year in the mid-1990s to 45,000 in 2001. By 2006, the level of filing had fallen back to where it stood 10 years
earlier. Similarly, at the European Patent Office, there was a 13 percent year-on-year increase between 1995 and 2000,
followed by a 6 percent year-on-year fall from 2000 to 2003.
But, Gollin said, "biotech is still innovative, so where is innovation going if not into patents?"
The answer seems to be that the scales are tipping back in favor of keeping trade secrets, posing the question of whether
biotechs prefer the patent or trade secret approach when it comes to protecting their intellectual property.
For David McElroy, president of the agricultural biotech firm Targeted Growth Inc., the answer is "do-it-yourself" IP
protection. "We sell plants all over the world . . . and where patent protection is weak or unclear you see the rise of other
methods, particularly in agbiotech," he noted.
One example is hybrid systems, where the farmer cannot sell on seeds. Another is endpoint pricing, in which, rather than
granting licenses to genes up front, farmers are charged when crops are taken to the mill for processing.
The issue of keeping trade secrets is imposing a limitation on the offshoring of R&D to countries where costs are lower but
intellectual property protection is weaker. "The tendency is to keep trade secrets and know-how at corporate headquarters, and
so this influences what R&D you do elsewhere," McElroy said.
The rise of synthetic biology will present even greater challenges he contended. "Synthetic biology is getting ahead of IP
protection because there is more and more ease to work around composition of matter for genes."
On the other hand, agbiotech has very good protection of one fundamental piece of know-how, which is the technique for
carrying out transformations.
"You can publish a method for juggling four balls in the air, but that doesn't mean your competitors can do it," McElroy said.
In the case of crop transformation, knowing the method does not provide the know-how, as evidenced by how few
organizations have managed to do it.
The increased reliance on trade secrets and know-how to protect IP raises cultural and management issues, given that the
easiest route for those types of information to be disclosed is through current and former employees.
That is a particular problem in biotech said Kerry Flynn, vice president of intellectual property and licensing at Shire Human
Genetic Therapies Inc. "It is an incestuous community; employees leaving to join a competitor down the street makes keeping
trade secrets a bit of a challenge."
Flynn confirmed that Shire's view of the landscape for patenting has changed of late because of higher standards in the granting
of patent rights and the fact that recent legal rulings make it less likely for the company to get injunctions.
"When we were a small biotech company, we were more aggressive in patent filing because that was important.
[card continues --- no text deleted]
96
Patents Aff
PMA
DDI 2008 BQ
Patents Good – Trade Secrets

[continued]
Whether we could afford to protect them or not was another matter," Flynn said. "Now, as a bigger company, we think we can
protect value better through trade secrets."
As a result, the company has set up a formal process to protect trade secrets. In addition to signing nondisclosure agreements
on joining Shire, new employees are briefed by a lawyer on the company's policy. They are reminded also of their duty of
confidentiality to previous employers, in a bid to ensure that Shire cannot be accused of stealing trade secrets from other
companies.
The reforms to U.S. patent law mean the system will be friendlier to infringers than patentees, as it will make U.S. patents less
reliable, easier to be challenged and cheaper to infringe, Ed Grieff, senior partner at Amylin Pharmaceuticals Inc., told
conference attendees. However, Grieff said he believes that for small private biotechs without products, patents remain
essential because that is where most of their value resides.
Patents are important in fundraising, doing licensing deals and needed at the point of going public.
"It is tragic for small companies that there is a movement against patents," Grieff pointed out. "It won't help innovation."
The KSR decision creates the condition for inventors to jump from patents to
trade secrets.
David D. Friedman and 2 others, John M. Olin Visiting Fellow in Law and Economic, Journal of Economic
Perspectives, “Some Secrets of Trade Secret Law,” Vol 5., No. 1, Winter 1991
To summarize, trade secret law supplements the patent system. Inventors choose trade secret protection when they believe that
patent protection is too costly relative to the value of their invention, or that it will give them a reward substantially less than
the benefit of their invention (as reflected, in part, in the length of time before any else will invent it), either because the
invention is not patentable or because the length (or other conditions) of patent protection is insufficient. By successfully
maintaining their trade secret they provide evidence that their belief was correct. In effect the common law has plugged several
economic holes in the patent statute. It has not done so costlessly; patenting results in the disclosure of socially valuable
information, and trade secret protection does not. But it may be doubted how great this social cost is, for reasons to be
considered next.
The changes to the patent system are causing more companies to keep their innovations
secret and stopping internal investment in R&D
JOHNSON IN SUPPORT OF RESPONDENTS http://supreme.lp.findlaw.com/supreme_court/docket/2006/november/04-1350-ksr-v-
teleflex.html
In such a system where factfinders are more likely to invalidate patents, the incentive to strike the “patent bargain” –
disclosure of the invention in return for limited-term patent rights – would be skewed against patenting. Fewer
inventors would choose to disclose their inventions, and fewer companies would risk long-term investments in research
and development if their ability to protect those investments with patent rights were determined under the wholly
subjective standards urged by KSR and its amici.
97
Patents Aff
PMA
DDI 2008 BQ
Patents = Long-term Growth

A decrease in the number of patents issued demonstrate a drop in the stock of
technological knowledge, which is key for long-term economic growth.
Craig K. Elwell, Specialist in Macroeconomics - Government and Finance Division, Congressional Research Service, “Long-Term
Growth of the U.S. Economy: Significance, Determinants, and Policy,” 5/25/06
Recent research on economic growth has also taken a closer look at the likely determinants of technical progress, looking to
explain this phenomenon as the consequence of purposeful economic behavior, influenced by typical notions of risk and
reward, and perhaps open to influence by economic policy. The various versions of these new models are categorized under the
heading: endogeneous growth theories. This simply means that the advance of technical progress is explained by the theory and
not just taken as an unexplained external force. 19
It would be inaccurate to say that endogenous growth theories have supplanted the standard model, but they have induced a
more economically realistic rendering of the very important process of accumulating a stock of technical knowledge. The
recent economic analysis of advancing technological knowledge proceeds very much like the analysis of physical and human
capital. At any point in time, the economy possesses a given stock of technological knowledge. By continually adding to that
stock it continually expands the productive potential of the economy, that is, generates sustained long-term economic growth.
These actions taken to add to the stock of productive knowledge are also a form of investment in that the accumulation only
occurs by channeling some of society’s scarce productive resources away from the current production of final goods and
services. Scientists, engineers, research facilities and equipment are scarce productive resources that could otherwise have been
used for the current production of final goods and services, and are the opportunity cost of producing technological advance
and sustaining long-term economic growth. It is the prospect of future gain that will exceed these costs that drives the
accumulation of technical knowledge in a market economy. Measuring the stock of technological knowledge is a problematic
undertaking, however. A more tractable task is an accounting of the flow of endeavors that most likely lead to additions to that
stock. Factors thought indicative of investment in technological knowledge that can be measured include changes in the
number and share of scientists and engineers in the labor force, the level and intensity (share) of spending on research and
development (R&D), and the rate of issue of new patents. Based on such measures, the United States (and other industrial
economies) has demonstrated over the last century a rising commitment of resources to creating technical knowledge, but there
is some evidence of a waning of some elements of these efforts in recent years
98
Patents Aff
PMA
DDI 2008 BQ
KSR Bad
The KSR decision dramatically weakens the patent system by encouraging
potential infringers to ignore patents and withhold licenses.
The key to successful development and licensing of inventions generated within the university sector is a strong and viable
patent system. The ability of the amici curiae to continue this publicly beneficial activity is dependent on whether they can
obtain patents with an attached presumption of validity and can rely on the federal courts to protect their patents. Consequently,
any changes which, through legislation or judicial interpretation, weaken the patent system will have a highly detrimental
effect on the ability of the university sector to fulfill the premise and promise of the Bayh-Dole Act and therefore deprive the
public of receiving the benefits of inventions and subsequent innovations which will improve the human condition.
Amici recognize the current law on obviousness, including the “motivation to combine” test, as vital to protecting the integrity
of the patent system. The position urged by Petitioner in this case would dramatically weaken patents. It would invite potential
infringers to disregard patents and refuse licenses, because a colorable obviousness defense could always be created if the law
presumed that a combination of known elements cannot be a patentable invention.
It is vital to avoid using hindsight to assess an invention. Impinging on that assessment is the fact that the number of scientific
articles cataloged in the internationally recognized peer-reviewed set of Science and Engineering journals covered by the
Science Citation Index (SCI) and Social Sciences Citation Index (SSCI) grew to nearly 700,000 in 2003 alone.8 That repository
of information, even absent other non-peer reviewed articles and publications, represents a huge library of information where,
with the application of hindsight, uncombined elements of a given invention may be found with a diligent search. As a
consequence, and without some effective guide, as the Court of Appeals has enunciated in the present case, one would be hard-
pressed, perhaps even in most instances, not to find discrete elements of a disclosed and claimed invention with the application
of hindsight based upon such disclosure.
99
Patents Aff
PMA
DDI 2008 BQ
KSR Bad
Overturning KSR key to private sector adoption and commercialization – any
uncertainty that accompanies a patent means rejection. (1AC)
As a practical matter, the greater need for the patent incentive lies primarily with universities, other non-profit organizations
and small business. Technology transfer by universities and non-profits depends entirely on the underlying patent position.
Given the fact that most university-generated inventions are embryonic in nature and require a great deal of development and
often are well ahead of their time in a commercial sense, the need for exclusivity in licensing can be critical. Any uncertainty
which accompanies a patent and its scope and validity makes it a candidate for rejection of licensing by the private
sector. That, in turn, means that the likelihood of development to a commercial product or process is much diminished
and that the public will be deprived of its benefits.
Moreover, a large segment of university licensing is with small companies and, in fact, the Bayh-Dole Act requires that
preference be given to licensing of small business. 35 U.S.C. § 202 (c)(7)(D). It has been recognized by the National Science
Foundation that small businesses contribute the greatest number of jobs to the U.S. economy and it has been estimated that
university licensing has translated into 260,000 jobs and further, the licensing of inventions from universities, teaching
hospitals, research institutes and patent management firms added approximately $40 billion to the domestic economy.11
condition, is reliant upon a viable, sound and technology-neutral patent system. As such, the question before this Court is vital
condition.
condition, is reliant upon a viable, sound and technology neutral patent system. As such, the question before this Court is vital
condition.
100
Patents Aff
PMA
DDI 2008 BQ
KSR Bad
The new law encourages hindsight bias, which effectively prevents the
development of patentable technical advances.
The current law on obviousness is therefore consistent with the statute and with the laws of this Court. In contrast, the position
urged by Petitioner threatens to contradict 35 U.S.C. § 103 because it would shift the focus away from “the invention as a
whole,” and it would invite hindsight reconstruction rather than assessing the invention at the time it was made. 35 U.S.C. §
103.
The current law on obviousness also serves another important function: to ensure that determinations of obviousness are based
on evidence, and not merely on a judge or jury’s unsupported sense of common knowledge. For example, the Federal Circuit
has reversed the Board of Patent Appeals where the Board relied only on a high level of skill in the art as the motivation to
combine, rather than specific knowledge or specific principles. “The Board did not, however, explain what specific
understanding or technological principle within the knowledge of one of ordinary skill in the art would have suggested the
combination.
Instead, the Board merely invoked the high level of skill in the field of art. If such a rote invocation could suffice to supply a
motivation to combine, the more sophisticated scientific fields would rarely, if ever, experience a patentable technical
advance.” In re Rouffet, 149 F.3d 1350, 1357 (Fed. Cir. 1998).
Requiring some evidence of the motivation to combine teachings of multiple references also serves to provide an adequate
record for appeal. In Ruiz v. A.B. Chance, 234 F.3d 654 (Fed. Cir. 2000), the Federal Circuit vacated the district court’s
obviousness ruling and remanded, directing the district court to more clearly present findings that supported the motivation to
combine conclusion. The Federal Circuit later affirmed the district court’s determination of obviousness, including the
conclusion that the requisite motivation to combine was found “in the nature of the problem to be solved.” 357 F.3d at 1275.
101
Patents Aff
PMA
DDI 2008 BQ
KSR Bad
The KSR decision ‘radically decreases’ the incentive to invent and invest.
When Congress enacted 35 U.S.C. § 282 in 1952, it was careful to include both a presumption of validity for
issued patents, and also to place the burden of proving invalidity on the party challenging it: The burden of
establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. 35
U.S.C. § 282. This statutory provision has been followed by courts and relied on by parties for over 50
years. Further, this Court has long held that invalidity must be proved by clear and convincing evidence.
Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 2-6 (1934). Despite this
long-standing and fundamental point of law, the Petitioner before this Court urges a change in the law that
would dramatically alter the landscape and threaten to improperly shift the burden of showing validity to
the patent owner.
In particular, Petitioner asks this court to eliminate the requirement that an obviousness challenge include
some teaching, suggestion, or motivation to combine separate references in a way that leads to the
claimed combination. In its place, Petitioner and supporting amici urge a “synergy of the elements” or
“extraordinary result” test or, at a minimum, a presumption that a combination is suggested where its
separate elements are known in the art and function in the claimed invention in the same way that they
functioned in the prior art.
As explained above, this argument was rejected more than ten years before the Federal Circuit was
formed as “an analytical approach to patentability which is directly contrary to the statutory language of §
103.” Reeves, 444 F.2d at 270. The Reeves court evaluated the patent according to the Graham factors,
and sustained its validity in light of the failure of others to solve the same problem, and on the defendant’s
failure to satisfy the statutory burden under § 282. Id. at 272, n. 6.
What the Reeves court recognized in 1971, what the Custom Accessories court recognized in 1986, is
largely true today: most inventions are in fact combinations of known elements. A litigation defendant will
be able to locate the separate elements in practically every case. If doing so meets its burden of proof, or
even establishes a presumption of invalidity, then a patent owner will have the burden of proving the
additional facts to sustain the validity of its issued patent in virtually every case. Requiring the patent
owner to prove “synergy” or “extraordinary results” runs directly contrary to the burden of proof set forth
in § 282.
It has never been the patent owner’s affirmative burden to establish ‘objective evidence’ of
nonobviousness in the first instance. The absence of such objective evidence does not require a holding of
obviousness because such evidence is not an affirmative requirement for patentability under the statute.
Custom Accessories, 807 F.2d at 960-61 (vacating obviousness finding where “the district court may have
incorrectly placed the burden on the patentee to establish validity,” and remanding for more detailed
Graham findings).
The present law on obviousness ensures that the burden remains as statutorily prescribed by asking that the defendant produce some
evidence of a teaching, motivation, or suggestion to combine references. As explained above, the suggestion need not be an express
publication but can come from the knowledge of those skilled in the art or from the nature of the problem to be solved. But there must
be some basis to combine references, or some evidence of what the knowledge or problem is. To rule otherwise would suddenly
impose a new burden of proof on the owners of hundreds of thousands of issued patents, contrary to § 282. Further, doing so would
radically decrease the incentive to invent and to invest in invention.
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KSR Bad
KSR kills patent-grants – virtually all patents are ‘combinations’ that would be
denied under KSR.
In Reeves Instrument Corp. v. Beckman Instruments, Inc., 444 F.2d 263 (9th Cir. 1971), the Ninth Circuit Court of Appeals
recognized that a litigation defendant will almost always be able to find the individual claim elements separately in the prior
art. The court considered a challenge under § 103 to a patent relating to the problem of checking the operation of the numerous
elements of an analog computer. The defendant first argued that “combination” patents are subject to special scrutiny, and that
the patent in suit was invalid “because the claimed invention consists of old elements (amplifiers, potentiometers, switches etc.)
which operate within the claimed combination in the same fashion as they have always operated in the prior art.” 444 F.2d at
270.
This argument was squarely rejected by the court. In particular, the court carefully considered Graham v. John Deere and
found that the defendant’s argument “suggests an analytical approach to patentability which is directly contrary to the statutory
language of § 103 which provides that the inquiry into patentability must be drawn to the ‘subject matter as a whole’ and not to
the elements of a claimed combination and their individual novelty.” Id. The Reeves court recognized that the argument, taken
to its logical conclusion, would have the result of precluding patenting of “virtually every new mechanical or electrical device
since the vast majority, if not all, involve the construction of some new device (or machine or combination) from old
elements.” Id. The court did not limit its reasoning to the electrical and mechanical arts but extended it also to the chemical
arts, recognizing that “all chemical products are the result of combining known chemical elements.” Id. at 270-271.
The Federal Circuit has followed the legal principles set out by this Court, by Congress, and by its predecessor court. It has
continued to carefully apply the Graham factors in a way that follows the statutory directive to consider the invention as a
whole, and to consider the state of the art at the time the invention was made. Because virtually all patents are combinations,12
“[c]asting an invention as ‘a combination of old elements’ leads improperly to an analysis of the claimed invention by the
parts, not by the whole.” Custom Accessories v. Jeffrey-Allan Industries, 807 F.2d 955, 959 (Fed. Cir. 1986).
“Section 103 precludes this hindsight discounting of the value of new combinations by requiring assessment of the invention as
a whole.” Ruiz v. A.B. Chance, 357 F.3d 1270, 1275 (Fed. Cir. 2004). As explained in Ruiz, “inventions are typically new
combinations of existing principles or features. The “as a whole” instruction in title 35 prevents evaluation of the invention part
by part.” Id.
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KSR Bad
KSR Makes Obtaining Patents And Defending Their Validity More Difficult,
Discouraging Innovation
With "bad" n262 patents mired in a wave of negative publicity, the United States Supreme Court recently sounded off on the
validity of weaker patents that will be sure to give patents an image makeover. In KSR International Co. v. Teleflex Inc., n263 the
Court effectively invalidated a patent based on obviousness grounds, raised the bar on patentability, n264 and concomitantly
lowered the boom on patent trolls wielding improvidently issued paper patents. KSR promises to create a stir in the industry
by making it easier for defendants to prove invalidity, and thereby suggesting a transition of making it harder obtain (and
preserve the validity of) patents based on the combination of known elements. Rejecting the Federal Circuit's rigid approach
of requiring obviousness to be proven by the "teaching, suggestion, or motivation" test, n265 the Supreme Court expressed "the
need for caution" in granting patents or preserving their validity. n266 Moreover, the Supreme Court emphasized both "real
innovation" and "utility" as the driving forces as the quid pro quo for a patent monopoly: "Granting patent protection to
advances that would occur in the ordinary course without real innovation retards [*468] progress and may, in the case of
patents combining previously known elements, deprive prior inventions of their value or utility." n267 Buoyed by policies of
promoting innovation and the progress of science on the one hand, without the high price paid to legitimate competition on the
other, one senses a return to the notion that an inventor must actually have invented something before being rewarded a
patent monopoly: We build and create by bringing to the tangible and palpable reality around us new works based on
instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our
shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher
levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights
under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. n268 The
Supreme Court's 2007 decisions in Medimmune and KSR, and the Federal Circuit's 2007 decisions in SanDisk and Novartis reveal an
increasing willingness to entertain challenges to patents. And Chief Justice Roberts' concurring opinion in the 2006 eBay decision
conceals some cynicism toward paper patents and patent trolls. Critics of the patent system might cheer these decisions as foretelling a
day when paper patents and patent trolls may be plutoed.
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KSR Bad
The KSR Decision Limits Patents And Makes It Easier To Claim Invalidity
Dean L. Fanelli, et al Ph.D., Victor N. Balancia, Robert J. Smyth, Ph.D., Carl P. Bretscher, Arthur M. Antonelli******, Mark J.
Sullivanand Kent E. Basson. 2008 American University Law Review. “A REVIEW OF RECENT DECISIONS OF THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT: AREA SUMMARIES: 2007 PATENT LAW DECISIONS OF
THE FEDERAL CIRCUIT.” < http://www.lexisnexis.com/us/lnacademic/auth/checkbrowser.do?
The Supreme Court proceeded to broaden the application of the TSM test in several ways. The Supreme Court reiterated that "any
need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for
combining the elements in the manner claimed[,]" n179 not just the problem the inventor was trying to solve. n180 Similarly, "in
many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle" - not
just "those elements of prior art designed to solve the same problem" on which the inventor is working. n181 Finally, and in the
context of "a finite number of identified, predictable solutions," the Supreme Court stated that "the fact that a [*844] combination
was obvious to try might show that it was obvious under [35 U.S.C.] § 103," which further blurred the line between
invalidating obviousness and the non-invalidating "obvious to try" standard. n182 This "expansive" and "flexible" approach
toward a defense of obviousness will potentially make it easier to find a patent invalid for obviousness in court challenges, or
for Patent Office examiners to maintain claim rejections for obviousness. This is particularly true for those inventions that
combine previously known elements without demonstrating any unexpected or synergistic results. Additionally, the Supreme
Court has broadened the definition of the legal construct of a person of ordinary skill in the art by stating that "[a] person of
ordinary skill is also a person of ordinary creativity," n183 who may rely on "common sense" to render an invention obvious. n184
The Supreme Court's rationale was that "granting patent protection to advances that would occur in the ordinary course
without real innovation retards progress." n185 It should be noted that one of the prior art references relied upon by the
Supreme Court in rendering the patent-in-suit invalid was not mentioned in the patent's prosecution. While the Supreme
Court did not address the question of whether the "failure to disclose" prior art during prosecution "voids the presumption of
validity given to issued patents," it explicitly "noted that the rationale underlying the presumption ... seems much diminished
here.
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KSR Bad – Less Patents
New Patent Procedures Cause Incorrect Obviousness Determinations,
Therefore Reducing The Number of Patents Given
Christopher A. Cotropia- Associate Professor of Law, Intellectual Property Institute, University of Richmond School of Law. 2006
Brigham Young University Law Review. “Patent Law Viewed Through an Evidentiary Lens: The "Suggestion Test" as a Rule of
Evidence.”
This Article tests the validity of this criticism and finds that the Federal Circuit has not narrowed the suggestion test. By taking a
novel look at the jurisprudence, this Article concludes that the court has instead adopted an evidentiary-like aspect of the
suggestion test. Those cases where it appears the court is focusing only on the prior art are actually instances where the court
is exercising an evidentiary aspect of the suggestion test. The suggestion test's "rule of evidence" excludes undocumented
evidence of suggestion that does not contain the requisite detail and analysis. This rule of evidence is tailored to adjust the level
of detail and analysis required to correspond to the complexity of the technology at issue. As a result, the suggestion test's rule
of evidence helps to reduce overvaluation of suggestion evidence and the resulting, incorrect obviousness determinations.
However, the rule may produce some erroneous nonobviousness determinations of its own, particularly at the United States Patent and
Trademark Office ("USPTO"), and thus should be relaxed in this context. Finally, this use of an evidentiary lens to look at, and
evaluate, patent doctrine has application in patent law far beyond nonobviousness and the suggestion test.
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Biotech Add-on
In the Biotech Sector Patents Encourage Investment

In biotechnology, the surge in innovation, notably by start-ups, benefited greatly from the possibility of obtaining
patent protection, which attracted the capital needed in this area. In certain upstream fields, such as genetic material or
genetic testing, there are cases where patents might still impede access to technology. The quality (novelty) and breadth of
patents in these areas need to be reviewed. Governments should explore ways to encourage alternative means of
disseminating knowledge, such as the public domain, and to improve the diffusion of patented inventions, e.g. through the
promotion of patent pools and the publication of licensing guidelines
KSR destroys investment in biotech.
Yi-Chen Su and Albert Wai-Kit Chan, professors of medicine and biotech, 2008, T.C. Wiliiams School of Law, University of
Richmond, lexis ARTICLE: MARY DOE'S DESTINY: HOW THE UNITED STATES HAS BANNED HUMAN EMBRYONIC
STEM CELL RESEARCH IN THE ABSENCE OF A DIRECT PROHIBITION
P49 The Supreme Court issued a decision restricting the issuance of patents approximately one month after the PTO's non-final
decision revoking the first patents in this country issued to human ES-cell lines and methods of obtaining the cell lines. In
KSR International Co. v. Teleflex, Inc., n131 the Supreme Court rejected the Federal Circuit Court of Appeals
"teaching, suggestion, or motivation" test ("TSM test"), n132 and replaced it with an "expansive and flexible
approach" to be used when determining the question of obviousness. n133 Before KSR International, the Federal Circuit
Court of Appeals had developed and adopted the more rigid TSM test. These tests are necessary because a patent cannot be
granted if the subject matter was obvious to a person having ordinary skill in the art, at the time the subject matter was
invented. n134
P50 The Federal Circuit's TSM test was a way of "[s]eeking to resolve the question of obviousness with more uniformity and
consistency . . . ." n135 Under the test, a court is obliged first to presume that the issued patent was valid and then to render its
own independent judgment of obviousness based on a review of the prior art. n136 A patent claim is only proved obvious if
"'some motivation or suggestion to combine the prior art teachings' can be found in the prior art, the nature of the problem, or
the knowledge of a person having ordinary skill in the art." n137 In other words, "unless the 'prior art references address[ed] the
precise problem that the patentee was trying to solve,' the problem would not motivate an inventor to look at those references."
n138
In addition, the fact that the PTO had rejected a broader version of the claim has no place in the analysis under the TSM
test. n139
P51 In rejecting the TSM test, the Supreme Court replaced it with an expansive and flexible approach by stating that, "[t]he
combination of familiar elements according to known methods is likely to be obvious when it does no more than yield
predictable results." n140 The Court further noted that "[o]ne of the ways in which a patent's subject matter can be proved
obvious is by noting that there existed at the time of invention a known problem for which there was an obvious solution
encompassed by the patent's claims." n141 Moreover, courts are invited to look at any secondary considerations that would prove
instructive, wherever appropriate. n142 Under the test, a court can take account of any inferences and creative steps that a person
of ordinary skill in the art would employ. n143
P52 The Supreme Court's flexible approach has raised concerns that the issuance of patents, especially in the field of
biotechnology, will become unpredictable and deter private investment as a result. As the Biotechnology Industry
Organization has argued in its amicus brief, if the standards of obviousness under 35 U.S.C. § 103(a) become less
objective, the increased uncertainty about the availability of patent rights will have a direct impact on investment
incentives in biotechnology, and will deter investment within the industry. n144 In addition, "[i]nventors would have no
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predictable defenses against [challengers] seeking to invalidate biotechnology inventions many years, or even decades,
after the ideas were first conceived." n145
BioTech Addon
The KSR decision negatively affects investment and innovation in the biotech
industry
BETH S. BRINKMANN Counsel of Record SETH M. GALANTERBRIAN R. MATSUI MORRISON & FOERSTER LLP,
BRIEF OF BIOTECHNOLOGY INDUSTRY ORGANIZATION AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS, 2006
– findlaw
BIO members have great interest in this case and the standards that are applied under the Patent Act to determine whether an
invention is nonobvious and therefore patentable. BIO members expand the boundaries of science on a daily basis through their
research and development of biomedicine, diagnostics, agricultural, and environmental products and services. That research and
development is possible because the promise under the Patent Act of exclusionary rights for a limited period of time in validly
patented subject matter serves as an incentive for investment. That investment results ininnovative products that are used to
improve the quality of millions of lives worldwide. If investors fear that marketable biotechnology patents will be prone to
invalidation under a new obviousness analysis, future biotechnology innovation will suffer from less investment.
Patent System is Key to biotech innovation

Under Secretary of State Alan Larson, 10/19/2K, http://www.biotech-info.net/making_good.html
Privately funded research and development is a powerful force for innovation. In the last two decades, capital
markets have deepened and improved their capacity to support innovation. For these markets to work well, there
must be a sound framework of intellectual property rights protection to ensure an economic return for those
research and development expenditures that generate useful innovations.
These considerations may help explain why some of the first commercially available biotech products were
produced by American farmers, particularly the corn and soybean farmers of the Midwest. Farmers here are used
to innovation and attentive to the cost-savings these crops offer by reducing the need for herbicides and pesticides,
for example.
We will need to think hard about whether this private sector model will work everywhere. To be sure, as an economist, I
believe the laws of economics operate in all countries. If there are gains to be had from developing a rice variety tolerant of
brackish water, I see no a priori reason why economic incentives should not play a role in stimulating the innovation.
The KSR decision deters investment and innovation in biotech.

– findlaw
The objective standards under the current case law that govern the determination of whether an invention was obvious under
35 U.S.C. § 103(a), and therefore not patentable, have a direct impact on investment incentives in biotechnology, and thus the
development of the previously described innovations. If those standards were to become less objective, as petitioner proposes,
increased uncertainty about the availability of patent rights would deter investment within the biotechnology industry. That
would, in turn, negatively affect public health and welfare, which benefits greatly from biotechnology innovation The Federal
Circuit’s development of the law of obviousness is consistent with the intent of Congress in the Patent Act and the precedent of this
Court. It provides objective bases upon which courts and the PTO can determine whether an invention is patentable. The teaching-
suggestion-motivation test is a useful and objective inquiry that appropriately guards against hindsight in addressing the
question of whether a person of ordinary skill in the art would have combined prior art references.
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Biotech Addon
The KSR decision is destroying innovation in all fields of biotech
– findlaw
Adoption of petitioner’s approach would have a profound effect on the biotechnology industry. Remarkable
innovations in the fields of agriculture, energy, and medicine could be rendered obvious merely because they are
combinations of pre-existing elements and methods. Inventors would have no predictable defenses against infringers
seeking to invalidate biotechnology inventions many years, or even decades, after the ideas were first conceived.
Many key innovations in biotech would be ruled obvious by the post-TSR

method.
– findlaw
Petitioner’s proposed standard could have a particularly profound effect on the biotechnology industry. First, many patentable
inventions in biotechnology spring from known components and methodologies found in prior art. Researchers may recognize
that a prospective invention is possible or desirable. Drawing on a great abundance of existing biotechnology techniques,
reagents, and structures that can be combined in novel ways, such researchers may even be able to outline a possible method
of achieving the invention. Yet, while any number of such new combinations may be logical to try, most advances in
biotechnology are only won through trial and error, at great effort and expense, and with only a low probability of success in
achieving the claimed invention at the outset. Having an apparent method to try to make an invention should not render
obvious an invention that ultimately results from that process. See Br. of Intellectual PropertyLaw Professors in Supp. of Pet. at
8; Br. of Economists and Legal Historians in Supp. of Pet. at 17. For example, after a new virus is discovered, scientists often apply
well-known techniques to attempt to create a vaccine capable of protecting the population from infection. Yet the choice of how to
apply a particular known technique can be crucial, because success for an individual vaccine candidate is unpredictable. What may
seem, in retrospect, to be a straightforward application of a known technique to a known virus, often proves to be, in practice, very
difficult or impossible to achieve. Thus, while one might have hoped to achieve a certain result, because of the unpredictability in the
field, a skilled person would not have been able to envision the complete combination of elements that later result in the claims of an
issued patent. It is crucial, therefore, to examine whether the prior art suggested or taught the combination of old elements in the
particular manner claimed, as the Federal Circuit requires.
The KSR decision threatens patent protection for biotech.

– findlaw
Accordingly, the biotechnology industry relies heavily upon the nonobviousness jurisprudence of this Court and the
Federal Circuit to ensure that new biotechnology innovations are objectively evaluated for patentability. Fundamental
changes to the nonobviousness requirement – particularly modifications that make the analysis unpredictable and more
susceptible to hindsight bias – will threaten patent protection in an important and dynamic sector of the Nation’s
economy.
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Biotech Addon
The TSM system is key to fostering innovation in many very important biotech
sectors.
– findlaw
Innovation in biotechnology affects many facets of human existence. For example, biotechnology research into agriculture
has increased harvests worldwide through the creation of higher yield, pest and herbicide resistant crops.3
Biotechnology is responsible for new therapies to treat heart disease, cancer, AIDS, stroke, septic shock, diabetes,
anemia, cystic fibrosis, multiple sclerosis, lupus, kidney disease and liver disease. Many more inventions, however, have
yet to make the transition from foundational knowledge to practical and safe solutions for health, nutrition, and energy
needs. The biotechnology industry is responsible for more than 20 billion dollars of annual research investment, and provides
employment to hundreds of thousands of individuals. These benefits depend upon a patent system in which the
biotechnology industry and its investors need not fear that innovations will be invalidated as obvious merely because
they are combinations of preexisting technologies and methods. Research and development within the industry comes at
a high cost, and every idea that is funded comes with a greater risk of failure than success. Investment thus is
predicated on an expected return on investment in the form of products or services that are protected by patents whose
validity can be fairly determined.
The KSR ruling is hurting innovation in the energy and agriculture sectors of
biotech.
– findlaw
Biotechnology innovations in the fields of agriculture and energy face similar risks, which are likewise justified by the
potential rewards of a marketable product with patent protection. Accordingly, changes to the nonobviousness analysis
could have dramatically negative effects on biotechnology innovations if, a decade or more after money has been
expended to research, test, and develop a marketable product, the product is deemed obvious based upon hindsight-
driven conclusions that the product now appears unremarkable, years after it was created.
Biotech solves world food requirements

Under Secretary of State Alan Larson, 10/19/2k, http://www.biotech-info.net/making_good.html
We need more such examples. Despite magnificent advances in agricultural productivity during the last quarter
century, some 800 million people are still undernourished. Over 200 million of them are children. In fifty years, the
world’s population could grow to 10.7 billion. For a population this large to be adequately fed, the world will need to
double food production.
In the past, experimenters and scientists helped the world avert a Malthusian disaster by improving the genetic
characteristics of crops through crossbreeding. Dr. Borlaug and others now conclude that the world has reached the stage
where conventional cross-breeding will not be enough. Modern biotechnology will be needed to improve crops
sufficiently to meet future food requirements.
Biotechnology provides unique opportunities to increase the quantity, quality and reliability of food supply. These
gains can be achieved with potentially less need for pesticides and herbicides, less demand on scarce water supplies
and less pressure to use ecologically sensitive land.
Biotechnology holds particular promise for developing countries and for poverty alleviation. Despite considerable progress
during the past quarter century, many countries, especially in Africa, have been unable to achieve sustained gains in agricultural
productivity. Increasing farm productivity will raise the incomes of the rural poor and free up workers to support growth in
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the manufacturing and service sectors. Raising agricultural productivity will be critical in any effective strategy for achieving
sustainable growth and poverty alleviation in Africa, and to continued progress in the rest of the developing world.
SC Decisions Spill Over – Precedent

Supreme Court decisions rely on precedent meaning that if we overturn KSR in the field of alternative
energy, the Supreme Court will apply this to all new decisions.
Tracey E. George and Lee Epstein, The American Political Science Review, Vol. 86, No. 2 (Jun., 1992), pp. 323-337
Often termed positivist, or analytical, jurisprudence (see Austin 1904), the legal model was the primary modus operandi for political
scientists through the 1940s and continues to dominate legal education in the United States. At its core, legalism centers around a
rather simple assumption about judicial decision making. Namely, that legal doctrine, generated by past cases, is the primary
determinant of extant case outcomes. It views judges as constrained decision makers who “will base their opinions on
precedent and will adhere to the doctrine of stare decisis” (Wasby 1988, 210). Some scholars label this mechanical jurisprudence,
because the process by which judges reach decisions is highly structured. Levi (1949) describes the basic pattern of legal
reasoning, reasoning by example, as a process characterized by the doctrine of precedent and articulated in three steps: (1) observation
of a similarity between cases, (2) announcement of the rule of law inherent in the first case, and (3) application of that rule to the
second case.
Legal education and scholarship adopted this as a paradigm – the process by which judges and lawyers should proceed. Eschewing
normative approaches, political scientists (from the 1920s though the 1950s) instead viewed “reasoning by example” as the way
judges do proceed. Cushman (1929), Corwin (1924), and many others centered their work on the notion that previously announced
legal doctrine provided the single best predictor and explainer of court decisions.
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Nanotech Add-On
The KSR decision hurts innovation in the nanotech industry.

Magda Carvalho Patent Agent (PhD, JD) Patent Law at M. Carvalho, Obviousness: KSR rationale applied to nanotechnology.
http://www.nanotech-now.com/columns/?article=208 2008
There are three statutory requirements for patentability: an invention must be new, nonobvious, and useful. This column focus on the
requirement of nonobviousness. Obviousness rejections are the most prevalent at the United States Patent and Trademark Office
(USPTO). Simply put, an "ordinary innovation" the kind an artisan could have foreseen without any toiling is not patentable. The
nanotechnology industry, much of whose value derives from patents, needs to take note of this not so small issue. In 2007, the
Supreme Court decision in KSR v. Teleflex has introduced new challenges for passing the obviousness test.(1) Six months after KSR's
decision, the USPTO published new obviousness rules, and its impact on patent prosecution is now coming to light.(2) In
nanotechnology some of the patentability issues relating to post-KSR rationales come from creation of a new nano-sized
material by simple substitution of familiar materials in known methods or devices. The creation of a new nano-sized material
is awesome. The trouble arises when the Examiner issues a final rejection of the claim based on post-KSR ruling. That is not the
end of the issue, however. The rejection is appealable to the Board of Patent Appeals and Interferences (Board).(3) However, the
Board has warned of a strict application of KSR on nanotech patent applications: that simply substituting "familiar
materials" to do the same job that the prior art does may be obvious; and a conclusion of obviousness requires a showing that
there existed a "reasonable expectation of success."
Nanotech would make people immortal

Christopher Wiley 2004 , MD “Nanotechnology and Molecular Homeostasis”, molecular nanotechnology
The limited structural strength that the human body possesses is largely due to bone, connective tissues
of various sorts, and cellular cytoskeletons. It should be possible to greatly increase the toughness of the
tissues, without compromising function, using relatively simple nanites designed to reinforce the connective tissues
by depositing nanoscale diamondoid fibers. The result would be greatly increased resistance to damage from
physical trauma. Walking away, uninjured, from a long fall or car crash could become possible. Various sorts of
functional enhancement, for example, sensory acuity or neuronal function, although undoubtedly more
difficult, should also become feasible with medical nanotechnology. Nanites designed to regulate and enhance
the function at certain targeted synapses could have a major effect on the function of many of the
body's systems. Nature has granted certain amphibians the ability to completely regenerate entire limbs if
necessary. So it does not seem far-fetched to assume that, once the cells' molecular signaling language (as described
above) has been learned, it should be possible to order cells to replicate, migrate, and differentiate as desired to
repair damaged tissue. Currently, tissues that are worn out or dysfunctional (hips, knees, and cochlear
implants) are routinely replaced. In the future, it may be decided to use MNT to replace healthy tissues or
systems in the body with improved, nonbiological molecular machines. Alternatively, should people decide to keep
their organic bodies, it may ultimately become possible to provide each of the cells with its own "nanny" responsible
for monitoring that cell and immediately correcting any departure from optimal health and function. In principle,
then, it should become possible to maintain the human body in its optimal state indefinitely.
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Nanotech Add-on
Nanotech solves major diseases
Christopher Wiley, 2004, MD “Nanotechnology and Molecular Homeostasis”, molecular nanotechnology
Nanotechnology will surely have the capacity to prevent, detect early, or treat some of the major
diseases associated with aging, including cancer and cardiovascular diseases. Because these are major
causes of morbidity and mortality in older persons, longevity will be increased. As the mechanisms of
aging are elucidated, nanotechnology will be applied to cope with adverse environmental influences
(e.g., oxidant stress) and to initiate biochemical and genetic actions that promote longevity (thus, e.g.,
mimicking the effects of caloric restriction or stimulating sentinel genes that initiate a genetic cascade
that results in extended life spans). Conceivably, MNT will offer a comprehensive solution to aging
and provide the means to maintain optimal human health. Existing damage (in the already aged or ill)
could be repaired and reversed, resulting in genuine rejuvenation. The optimal state of health thus
achieved could be indefinitely maintained, and various enhancements, resulting in "superoptimal"
health, may become possible. Thus, mature molecular nanotechnology holds out the promise of
essentially eternal youth.
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Nanotech Add-on
Nanotech creates super soldiers
Jurgen Altmann 4, cofounder of the German Research Association Science, Disarmament and International
Security FONAS, studied military uses of, first, microsystems technologies and then nanotechnology, with a
view towards preventive arms control both at University of Dortmund, Germany.Security Dialogue, vol. 35, no.
1, pp. 61-79, March 2004
US military R&D of NT started in the early 1980s with ultra-submicron electronics; later, scanning-probe microscopy
became a focus; and in 1996, nanoscience was named one of six strategic research areas for defence.10 Within the NNI,
founded in 2000, 25–30% of the funding goes to the Department of Defense (DoD). Military NNI funds are spent by the
R&D agencies of the DoD and the armed services.11 Much work is done in the laboratories of the services themselves.
Basic science and engineering in universities is supported by the Defense University Research Initiative in NT
(DURINT). In 2001, 16 grants were awarded for work on nanoscale machines, carbon nanotubes, quantum computing,
magnetic nanoparticles, etc. In addition, 17 grants were given for acquisition of NT research equipment (DefenseLink,
2001). In March 2002, the US Army selected the Massachusetts Institute of Technology (MIT) to be the host for the
Institute for Soldier Nanotechnologies (MIT News, 2002; Talbot, 2002).12 Here, $50 million is to be spent during the
first five years, plus an additional $40 million from industry. Up to 150 people will carry out basic and applied research
in seven teams, focusing on materials and sensors for soldier protection (against bullets, directed energy,
chemical/biological agents), performance enhancement, and body monitoring and injury intervention. One goal is to
reduce the weight of infantry-soldier equipment from 60 to 20 kg. Another guiding vision is the development of a battle
suit that dynamically provides protection, communication, mechanical enhancement and thermal management,
compresses wounds and administers therapeutic drugs. Broad national-security goals as guidelines for military
R&D in the convergence of NT, biotechnology, information technology and cognitive science were expressed at the
NBIC workshop (Asher et al., 2002; see also CIEMN, 2002). These goals include the development of miniature sensors,
high-speed processing, wide-bandwidth communication, unmanned combat vehicles, improved virtual-reality
training, enhancement of human performance (e.g. modified biochemistry to compensate for sleep deprivation) and
applications of a brain–machine interface. While the military part of the NBIC workshop was more cautious than
the other sections with respect to far-reaching concepts of human-body manipulation etc., the US military is open
towards such ideas. For example, in 2001 an army workshop mentioned ‘artificial systems within the
soldier’ such as ‘neurofunctional implants’, ‘biological input/output devices’, and ‘implanted
miniature computers’.13 Whereas some of these concepts would have beneficial medical uses
(e.g. in paralysed patients), their general application in soldiers would raise important ethical
problems, with consequences already for the research stage.14
Nanotech is key to space
Jurgen Altmann 4, cofounder of the German Research Association Science, Disarmament and International
Security FONAS, studied military uses of, first, microsystems technologies and then nanotechnology, with a
view towards preventive arms control both at University of Dortmund, Germany.Security Dialogue, vol. 35, no.
1, pp. 61-79, March 2004
For military uses of outer space, NT (with MST) will provide many possibilities for markedly smaller satellites,
together with smaller launch vehicles. Small satellites could be used in swarms for radar, communication or
intelligence. Owing to the large effective antenna size of such a system, the target resolution would be high; however,
the total antenna and solar-cell area would determine the strength of received or transmitted signals. Small satellites
could damage or destroy other satellites – either by a direct hit with high relative velocity or through manipulations
after rendezvous and docking. NT-enabled electromagnetic acceleration could also be used for kinetic-energy space
weapons.
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Genes Add-On
The KSR decision leads to trade secrets in the gene sector.
Anna Bartow Laakmann, finding quals but rights for a lot of big reviews, 9/07, University of Michigan Law School Michigan
Telecommunications and Technology Law Review,lexis, ARTICLE: RESTORING THE GENETIC COMMONS: A "COMMON
SENSE" APPROACH TO BIOTECHNOLOGY PATENTS IN THE WAKE OF KSR V. TELEFLEX
The common sense approach to biotechnology patents outlined above would alleviate certain anticommons problems currently
existing within the field. Newly found genes would be freely available for future research, aiding the ability of scientists to
engage in collaborative projects designed to elucidate the complex regulatory pathways involved in disease processes. The
revised paradigm would also reduce the cost of developing DNA microarrays by eliminating the need for chip makers to
negotiate licenses with the numerous gene and SNP patent holders whose sequences reside on the chip. This may make gene
chips cheaper and more accessible, which would further facilitate the progress of biomedical research because scientists
believe that microarrays are crucial to unlocking the secrets of human genetic variation. n226 The proposed approach would also
eliminate costs incurred when upstream gene patent holders extract rents from biopharmaceutical companies for the right to
develop drug candidates targeting patented genes.
Revoking the availability of gene patents may have the negative effect of stifling disclosure about newly discovered
genomic information. In the absence of patent protection, researchers may resort to trade secrecy in order to maintain
a proprietary interest in their discoveries. This may not be a serious problem within academia, where other
incentives are in place to encourage disclosure. Academic scientists may be motivated by prestige,
prizes, and academic awards, including tenure. n227 They may also be motivated by the love of
science and the possibility of making a positive contribution to their field. n228 But the revised regime may
lead to reduced disclosure of basic research findings by researchers working for biotechnology companies, who will
maintain such findings as trade secrets if they cannot obtain patent protection for their discoveries.
[*75] Concerns about disclosure are mitigated by the fact that trade secret protection does not
prevent other researchers from independently discovering the gene and disclosing their findings. It
is also important to note that filing a patent application does not lead to immediate disclosure of a
newly discovered gene: a thirty-month delay may remain between patent filing and public disclosure
of an invention. n229 Moreover, disclosure of a new gene via a patent application does not ensure that
it will be readily available for study by basic researchers because patent holders have the right to
demand a license fee or to refuse requests to perform research on a patented gene that fail to fall
under the narrow parameters of the experimental use exception set forth in Madey v. Duke. n230
Furthermore, discoverers of new genes under the proposed regime will have incentives to disclose
information about the gene in connection with patent filings on new inventions derived from the
gene discovery, such as new protein products or diagnostic kits. Thus, while the unavailability of gene
patents may lead to disclosure delays, arguably these costs are outweighed by the benefits of preserving new gene
discoveries for the genetic commo
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A2 Broad Patents Bad
Patent Claims Have Gotten Narrower or Stayed the Same
James Malackowski and Jonathan A. Barney, Malackowski is the President and Chief Executive Officer of Ocean Tomo, LLC,
Barney is Founder and CEO of Patent Ratings, LLC, 6-8-08, “What is Patent Quality” <www.docs.piausa.org/What-is-Patent-
Quality-6-8-07.doc>
Examiners granting patents with overly broad claims is another commonly cited anecdotal factor in support of the overburdened-
patent-office argument. But, a review of the underlying numerical and statistical data suggests examiners are, on average, currently
granting patents with slightly more narrow claims than they were 5 years ago. While claim breadth cannot be precisely measured
mechanically or statistically, counting the number of words in a claim and/or the average number of words per independent claim in
an issued patent can serve as rough proxy if taken form a sufficiently large, statistically relevant sample. In this case, we find that
patents issued in the first quarter of 2007 had an average word count per independent claim of 156.6. This reflects approximately a
2% increase over the average word count of 153.3 among patents issued in 2003. Again, the data appears consistent with the
conclusion that examiners are not granting patents with broader claims, but are granting claims of approximately the same scope or
slightly narrower scope (having 3.3 more potentially limiting words on average) than 5 years ago
116
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AT: Patent Boom

1. No patent glut – even if there’s an increase in patents filed, under TSM they
require almost no litigation and account for only 3% of federal lawsuits.
Declan McCullagh, staff writer for CNETNews.com, “Patent crisis is a myth, says ex-Microsoft exec,”
8/24/05, http://software.silicon.com/applications/0,39024653,39151642,00.htm
Not only have fears of a patent crisis been greatly exaggerated but the US patent system is functioning quite well, Microsoft's
former chief technologist said on Tuesday.
Nathan Myhrvold, now the chief executive of a start-up company that exists to create and licence inventions, told a conference
that "before you get worked up about this gigantic problem, you ought to see what the facts are".
Patent litigation represents only three per cent of federal lawsuits and there has been a steady decline in the number of lawsuits
filed per patent, Myhrvold said. "Almost everything you have heard about patent litigation statistics is not true," he said.
"Patents are the least litigious part of intellectual property law."
2. Patent litigation has exploded under the new system, putting increased
strain on overburdened federal courts.
Christopher F. Shiflet, member of the Columbus Bar Association, “United States Patent Reform on the
International Stage,” 5/3/07
Patent litigation has experienced a recent explosion, growing at a rate even greater than the number of patents issued. Figure 1, below,
illustrates this point, plotting the number of patent case filings and patents issued over time. Although the increase in patent litigation
is not necessarily a problem in itself, it has created some concern. First of all, the federal courts are already overburdened, and the
addition of complicated patent cases only contributes to the problem. A pilot program seems likely to begin in some district courts
allowing uninterested judges to decline patent cases to a roster of interested judges from which one is chosen at random. It would also
provide funding for additional patent law education and patent law clerks. Still, if a change to patent law could simplify litigation in a
manner that maintains equity, it would certainly help the courts. Beyond the sheer volume of patent litigation, the size of recent
damage rewards has also been quite troubling. Most recently, a federal jury found Microsoft guilty of infringing patents related to the
MP3 digital audio format and awarded $1.52 billion in damages. Such large awards have motivated calls for a new damage calculus in
patent infringement cases.
3. [INSERT YOUR FAVORITE TSM GOOD CARDS UNTIL I FIND MORE SPECIFIC EV]
More Small Patents Good – Encourages Small Advances In Technology That Could Be
Economically Important. Infringement Of Patents Can Be Easily Avoided.
There should be no harm in patenting small advances in technology, because the coverage of such patents must be limited to
those small advances. If the small advances are not technologically or economically important, infringement of such patents
can be easily avoided by not using these small patented improvements, preferably by achieving the same or a better result in a
substantially different way or by using substantially different structures. Patents do sometimes issue with unduly broad
claims, and it is reasonable to assume that this occurs on occasion because the PTO examiner handling the application did not
muster adequate TSM evidence. The patent system provides safeguards against such broad claims. First, the statute provides
for reexamination after issuance, which can be initiated by a third party.11 Second, federal courts have jurisdiction to declare
patents invalid after receiving appropriate evidence.
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AT: Patent Boom

Patent Boom Will Not Be Solved By Eliminating TSM
As many amici in support of Petitioner have noted, the PTO is straining to accommodate the growth in the number of patent
application filings.9 Contrary to the suggestions of Petitioner and its amici, abandonment of the teaching-suggestionmotivation
test will do little to remedy this administrative problem. Most of the growth of the PTO’s workload has nothing to do with the
purported difficulty of invalidating patents on the basis of obviousness.10 On a percentage basis, the PTO actually rejects many
more patents now than it did 40 years ago. Between 1963 and 1965, the PTO received 284,103 applications and granted 166,007
patents, about a 58% grant rate. Between 2003 and 2005, the PTO received 1,165,690 applications and granted 526,034 patents,
actually producing a lower grant rate of 45%. See U.S. Patent and Trademark Office, U.S. Patent Statistics Chart Calendar Years
1963-2005 (2006), available at http://www.uspto.gov/go/taf/us_stat.htm. Moreover, the Solicitor General advocates: The PTO should
instead be allowed to bring to bear its full expertise—including its reckoning of the basic knowledge and common sense
possessed by persons in particular fields of endeavor—when making the predictive judgment whether an invention would
have been obvious to a person of ordinary skill in the art. The patent applicant should bear the burden of proving PTO’s
Board and examiners wrong. Brief for the United States, at 26 (emphasis added). How exactly an inventor is supposed to disprove
a “reckoning” of the PTO or a court is left unexplained. While the Federal Circuit’s recent jurisprudence notes that “common
knowledge” may support a finding of obviousness, the evaluator must clearly explain any such evidence relied upon. See
Dystar slip op. at 17. Such reasoned findings by an evaluator are far from the type of essentially unsubstantiated analysis the
Solicitor General suggests. Stripped of the certainty and predictability of the Federal Circuit’s teachingsuggestion- motivation
test, inventors will be subject to the capriciousness of examiners and judges who, if the test is removed, will be susceptible to
the irresistible temptation of hindsight analysis.
No Empirical Evidence That Patent Boom Hurts Innovation
Steven P. Smith (Indiana University School of Law) and Kurt R. Van Thomme (Drake University Law School, 2005) 2007
Albany Law Journal of Science & Technology. “BRIDGE OVER TROUBLED WATER: THE SUPREME COURT'S NEW
PATENT OBVIOUSNESS STANDARD IN KSR SHOULD BE READILY APPARENT AND BENEFIT THE PUBLIC.”
<http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?
docLinkInd=true&risb=21_T4185321428&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T4185308609&cis
b=22_T4185321430&treeMax=true&treeWidth=0&csi=148364&docNo=1>
Some commentators have also suggested that the allowance of a patent for nominally beneficial inventions creates a
disincentive to the very promotion of the useful arts intended by the Constitutional patent grant. n124 These parties apparently
believe that the incentives of patent protection are somehow "diluted" by the increase in the number of patents granted. n125
However, no empirical evidence has been presented to show any validity to such speculation. Indeed, no empirical evidence has
shown that pioneer patents have decreased as the number of patents granted has increased. Rather, the evidence shows that the
number of patent applications has increased. n126 In fact, some [*152] of the commentators themselves have admitted to increasing
patent application filings. n127 While some of these same commentators attempt to suggest that this increase is due only to the
increase in the filings of defensive patents (presumably nominally beneficial patents) and that such defensive filings "drain[]
resources away" from truly pioneering innovation, n128 arguments such as these ignore the increasingly sophisticated internal
invention disclosure systems these types of companies have that greatly streamline and expedite the internal patent application
process. Cisco also has publicly admitted that its increased patent filings "help protect the right to innovate at Cisco." n129 Moreover,
others have suggested the industry competition demands will continue to drive innovation regardless of the number of minor
variation patents in the industry. n130 Thus, it is unlikely that granting patents for nominally beneficial inventions creates the
disincentive urged by commentators.
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DOE Fails
DOE and other government agencies fail at promoting energy R&D –

empirically proven.
Direct federal support. The Department of Energy (DOE) is the agency that provides the most financial support for energy
RD&D. Yet many of the demonstration projects undertaken by DOE since the 1970s have not been successful. Prominent
examples include the Clinch River Breeder Reactor in the early 1970s; DOE-managed large-scale synthetic fuel projects such
as Solvent Refined Coal; surface and in-situ shale projects; the Barstow, California, Central Solar Power Tower; and the
Beulah, North Dakota, Great Plains coal gasification project.
There are many reasons why these demonstration projects failed, but three shortcomings stand out. First, the projects were
based on overly optimistic engineering estimates of technological readiness and cost. Some of these difficulties could have
been averted if more time had been spent gathering data from small-scale engineering development projects and more attention
had been paid to modeling and simulation of process performance and economics.
Second, some of the demonstration projects met predicted levels of technical performance, but the cost was so far above the
then-prevailing market prices that the projects were market failures. This was a particular problem for synthetic fuel projects. It
can be avoided only if there is a clear differentiation between those projects that are intended to demonstrate technical
performance, cost, and environmental effects and those that are undertaken to increase production with federal assistance or in
response to federal mandates.
Third, DOE business practices differed dramatically from commercial practices, and thus its project results were not credible
demonstrations for private industry or investors. Tight DOE budgets caused projects to be funded inefficiently, which led to
stretched schedules and increased capital costs. Budget pressure also invited cost-sharing requirements that were motivated by
fiscal necessity rather than fair compensation for proprietary information. In addition, federal acquisition regulations, auditing,
work rules, and project management contributed to cost overruns.
The underlying difficulty is that DOE, and other government agencies, are not equipped with the personnel or operational freedom
that would permit the agency to pursue a first-of-a-kind project in a manner that convincingly demonstrates the economic prospects of
a new technology. A different approach is needed
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AT: Patent Trolls
Patent Trolls Are Good For Society

James F. McDonough III Emory University School of Law, Emory Law Journal, Vol. 56, p. 189, 2006,
http://papers.ssrn.com/abstract=959945
This Comment argues that, contrary to popular belief, patent trolls actually benefit society. These trolls act as a market
intermediary in the patent market. Patent trolls provide liquidity, market clearing, and increased efficiency to the
patent markets—the same benefits securities dealers supply capital markets. Ultimately, this Comment suggests that the
emergence of patent trolls is simply a stage in the natural evolution of the patent market.
Patent Trolls Signal Market Evolution
Just as markets for intangibles like capital, debt, and risk have evolved over the past one hundred years,368 a market for patents
has also taken form. The recent emergence of patent dealers within this market is no cause for concern; rather, it signals
progression, efficiency, and market evolution. Patent dealers function as market intermediaries, and by doing so, they
increase patent liquidity, set market clearing prices, and foster efficiency in the idea economy. The use of derogatory
labels and alarmist dialogue has no place in an area of law so vital to the U.S. economy. As a rule, understanding should
precede action, lest uninformed haste cause a gentle giant to be mistaken for a ghastly troll.
The Supreme Court Has Ruled On Patent Trolls Independently.

The Supreme Court granted certiorari in MercExchange, L.L.C. v. eBay, Inc.42 The main question in the case was whether the
district court properly denied MercExchange’s motion for injunctive relief against eBay, the alleged infringer.43 At issue in
the case was eBay’s fixed-price purchasing feature, which allows customers to purchase items that are listed on eBay’s
website for static, listed prices.44 MercExchange owns a patent that broadly covers the creation of an online marketplace
where items can be offered under live auction conditions and at fixed prices for immediate purchase.45 MercExchange
claimed that eBay was infringing upon this patent.46 Although the district court jury verdict favored MercExchange, and
found that eBay was infringing the patent, the court did not grant an injunction against eBay because it found that
MercExchange’s “willingness to license its patents [and] its lack of commercial activity in practicing its patents . . . are
sufficient to rebut the presumption that it will suffer irreparable harm if an injunction does not issue.”47 The Federal Circuit
did not find the case to be “sufficiently exceptional to justify the denial of a permanent injunction,” and it reversed the district
court’s denial of injunctive relief.48 The Supreme Court vacated the Federal Circuit decision and remanded after deciding that
it is not necessary for a patent owner to actually practice the patent as a prerequisite to getting an injunction.49 However, in
his concurring opinion, Justice Kennedy suggested that trial courts should consider whether the patent holder is a patent troll
when considering whether to grant an injunction.
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AT: Patent Trolls

Patent Trolls Lead to the Commodificataion of Patents.
If a credible threat of litigation exists, a patent becomes a commodity. The
term commodity derives from the Latin word commodus, meaning “useful.”156
As an economic good, commodities became associated with abundant, mass-
produced goods, such as cotton, cocoa, minerals, or pork bellies traded on
exchanges in Chicago or London.157 The understanding of commodification
has since been extended to “the action of turning something into, or treating
something as, a (mere) commodity; commercialization of an activity, etc., that
is not by nature commercial.”158
Under capitalism, almost everything becomes a commodity because almost
anything can be bought and sold.159 Commodification entails becoming the
potential object of a commercial transaction in the market or being
transferable.160 By statutory definition, patents are transferable in commercial
exchange; they are fully “assignable in law by an instrument in writing.”161
The United States is a capitalist country, and patents are fully transferable;
therefore, patents are a commodity and can be treated as such.162
Credible Threat of Litigation provided by Patent Trolls Helps the Market

As the Economist recently noted, “A new breed of companies has appeared
on the periphery of today’s tech firms, acting as intellectual-property
intermediaries and creating a market for ideas.”207 The aggregate effect of this
entry is a more efficient market.208 Patent dealers provide the patent market
with many of the same benefits that securities dealers provide in over-thecounter
capital markets.209 Unlike a national securities exchange that has a
physical trading floor and is based on an auction paradigm, an over-the-counter
market is not a centralized organization.210 To maintain a market for securities
without a physical central exchange, designated dealers operate as market
makers by buying and selling stocks on their own account.211 In doing this,
securities dealers make the capital market more efficient by providing liquidity
and serving a market clearing function.212
Similarly, patent dealers make the patent market more efficient through
buying and licensing patents.213 Patent dealers create a credible threat of
litigation, which encourages exchange, makes patents more liquid, and
facilitates market clearing through price equalization. As a result, the patent
market becomes more efficient.
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AT: Patent Trolls
The E-Bay Decision Provides Protection for Innovators over Patent Trolls
Forbes, 5-16-06 http://www.forbes.com/home/businessinthebeltway/2006/05/15/ebay-scotus-patent-ruling-cx_jh_0516scotus.html
The U.S. Supreme Court has tipped the balance in patent disputes ever so slightly toward the users of patented
technology and away from inventors, owners of intellectual property and the hated "patent trolls"--companies that make
money by suing for infringement of patents they own but don't use.
In a victory for eBay (nasdaq: EBAY - news - people ), the justices ruled unanimously that federal courts must weigh
several factors before barring a patent infringer from using a contested technology or business method.
The online auction house had petitioned the Supreme Court to review the practice of automatically issuing a permanent
injunction whenever a patent was found valid and infringed, arguing that the rigid standard was not grounded in the law.
At stake for eBay was the viability of the popular, fixed-price "Buy It Now" section of its Web site. MercExchange, a tiny,
Virginia-based patent-holding company, won millions of dollars in damages when it successfully sued eBay for violating one
of its patents related to the fixed-price auction feature.
Now the case will be sent back to the U.S. District Court where eBay originally won the right to continue operating "Buy It
Now" while it designs around the patent it infringed.
For years now, the U.S. Court of Appeals' Federal Circuit in Washington, D.C., which reviews all appeals of patent suits, has
slapped infringers with permanent injunctions as a matter of course, except in the most extreme circumstances.
But the Supreme Court ruled that traditional "principles of equity" must be taken into account before such a drastic sanction is
imposed. These principles include whether the patent holder has suffered irreparable damage or whether monetary awards
might be enough to compensate for the harm done to the patent holders.
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AT: Patent Trolls
Patent Trolls Are Key to Market Evolution
The patent dealer phenomena can be further appreciated within the framework of market evolution. In this context, it becomes
clear that the emergence of patent dealers evinces a natural progression of the patent market. Markets do not simply appear;
rather they are responses to latent or overt demand.”281 For a developing market to successfully evolve, “specific legal and
institutional infrastructures” must be developed.282 This developmental evolution can be viewed as a seven-stage process.283
In the first stage, “[A] structural economic change . . . creates the demand for capital.”284 As discussed earlier, a structural economic
change has most certainly occurred.285 This change is evidenced in the movement from a land and natural resource-based economy
to one based on intangible assets.286 In turn, demand for patents has intensified.287 In the second stage, uniform asset standards
arise.288 In the patent market, these specifications have been established.289 Congress has used the power conferred in Article I of
the Constitution to give the inventor exclusive rights over an invention as long as it is useful, novel, and nonobvious.290
Additionally, Congress created the United States Court of Appeals for the Federal Circuit to enforce and specialize in understanding
those standards.291
In the third stage of market evolution, legal instruments providing evidence of ownership develop.292 Patents are legal instruments in
themselves.293 The U.S. Patent and Trademark Office issues them to signify ownership and the right to exclude.294 Therefore, the
patent market is beyond this stage. The fourth stage is characterized by “the development of informal spot markets . . . where
‘receipts’ of ownership are traded.”295 Up until now, spot markets have been the only means of licensing and transferring patents.
Cash is paid at the market price for a patent owner to forgo his right to exclude, or alternatively, the patent right is transferred
outright with immediate delivery.296 The fifth stage is reached upon “the emergence of securities and commodities exchanges.”297
The emergence of patent dealers evinces the first manifestations of this stage. As discussed earlier, the patent dealer becomes a
focal point for the patent market, making patents more liquid, setting market clearing prices, and generally making the market more
efficient.298 Yet, there are still no existing formal trading markets for patents. So, it appears that the patent market is in the midst of
the fifth stage of evolution. The formation of futures markets and development of over-the-counter markets generally signal entry into
the last two stages.299 As of today, the patent market has not yet reached these stages. However, if the patent market follows the
evolutionary patterns of capital markets, agricultural commodities, or mortgage-backed securities, the patent dealer
phenomena is merely the beginning of this fifth stage, a precursor to formal trading markets for patents.300
Patent Trolls are Good for Innovation

First, by increasing patent liquidity and decreasing risk,329 patent dealers incentivize individual inventors and small entities
to invent, making more technology available to the public.330 Second, patent dealers serve as a focal point for the patent market.
By acting as a market intermediary for patents, collecting information regarding patents and their associated industries, and forming
relationships with corporations, a patent dealer becomes a focal point for those who create and seek technology.331 This results in
easier and broader access to inventions. Third, patent dealers encourage people to invent around patents.332 With knowledge that
patents will be enforced by patent dealers, potential infringers are forced to either license technology, or increase research and
development to invent around these patents.333 Regardless of the choice, the end result for the public is broader access to works.
Patent dealers also promote the advancement of innovation for the same reasons.334 The presence of patent dealers in the
market allows individual inventors and small entities to gain easy access to the patent market.335 Increased patent liquidity
and reduced risk gives inventors more incentive to invent, which results in advancement within that particular industry.336
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Neg Ev
Patents Bad
Low Quality Patents Are Harmful to Society
OECD, ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT 2004
A second issue is the quality of patents. Low-quality patents are those that protect inventions of limited novelty or that
provide overly broad protection. Low quality patents can be costly to society. Their proliferation not only swells the number
of patents and patent applications that must be reviewed by potential innovators and patent offices, but also creates
uncertainty about the validity and enforcement of patents more generally. The societal benefits of such patents are
likely to be low, but they can nevertheless be leveraged by their holders for rent-seeking purposes: they may be used as a
threat against other companies, especially small ones, or as part of patent thickets for closing market access to potential
competitors. The more important patents become to innovation and economic performance, the more necessary it is to
improve the quality of granted patents, and to do so at a reasonable cost. Various means have been already set in place in
different jurisdictions and could be considered by others:
Patents Hurt Innovation

However, patent protection may also hamper further innovation, especially when it limits access to essential knowledge,
as may be the case in emerging technological areas when innovation has a marked cumulative character and patents protect
foundational inventions. In this context, too broad a protection on basic inventions can discourage follow-on inventors if
the holder of a patent for an essential technology refuses access to others under reasonable conditions. This concern has
often been raised for new technologies, most recently for genetic inventions (Bar-Shalom and Cook-Deegan, 2002; Nuffield
Council on Bioethics, 2002; OECD, 2003a) and software (Bessen and Maskin, 2000; Bessen and Hunt, 2003).
Patents Have a Negative Effect on Diffusion

In addition, as has long been recognised, the main drawback of patents is their negative effect on diffusion and competition. As
patents are an exclusive right that creates a temporary monopoly, the patent holder can set a market price higher than the competitive
price and limit the total volume of sales. This negative impact on competition could be magnified as patent holders try to strengthen
their position in negotiations with other firms, in an attempt to block access by competitors to a key technology, or inversely, to avoid
being blocked by them (Shapiro, 2002). Such strategic patenting seems to have developed over the past 15 years, notably in the
electronics industry (Hall and Ziedonis, 2001).
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Patents Bad
Broad Patents Discourage R&D and Innovation

The breadth of a patent is the extent of protection granted to patent holders against imitators and follow-on inventors. Not only do
patentees obtain exclusive rights on their own invention but also on other inventions which are deemed “functionally
equivalent”, and to a certain extent on improvements of their inventions. Patents that are too broad allow their holders to
“pre-empt the future”, while patents that are too narrow discourage research that feeds into follow-on inventions. Other policy or
legal aspects have an impact on the patent system, including the amount of damages attributed by courts in case of infringement, the
conditions for exemptions for research use, etc. Taken together, these aspects determine the strength of patents. Overall, excessively
weak and narrow patents might deter business investment in R&D, as it becomes too easy for an imitator to undercut the inventor’s
market price. Weak and narrow patents may also encourage secrecy at the expense of publicity, and harm markets for technology,
hence hindering diffusion of technology. Conversely, excessively strong and broad patents may open the door to undesired
strategic behaviour by patent holders, who may use their titles to appropriate revenue from existing inventions marketed by
other companies. For instance, a broad patent on a basic invention with no substitutes may be equivalent to having an
exclusive right of exploitation over an essential facility, allowing its holder to bar follow-on inventors who would be willing to
invest in R&D to create socially useful applications. By carefully balancing these multiple instruments, policy makers can design
patent regimes that are favourable to both innovation and diffusion.
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TSM Bad/Low Quality Patents Bad
Low Quality Patents Are Harmful to Society
OECD, ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT 2004
A second issue is the quality of patents. Low-quality patents are those that protect inventions of limited novelty or that
provide overly broad protection. Low quality patents can be costly to society. Their proliferation not only swells the number
of patents and patent applications that must be reviewed by potential innovators and patent offices, but also creates
uncertainty about the validity and enforcement of patents more generally. The societal benefits of such patents are
likely to be low, but they can nevertheless be leveraged by their holders for rent-seeking purposes: they may be used as a
threat against other companies, especially small ones, or as part of patent thickets for closing market access to potential
competitors. The more important patents become to innovation and economic performance, the more necessary it is to
improve the quality of granted patents, and to do so at a reasonable cost. Various means have been already set in place in
different jurisdictions and could be considered by others:
Broad Patents Discourage R&D and Innovation

The breadth of a patent is the extent of protection granted to patent holders against imitators and follow-on inventors. Not only do
patentees obtain exclusive rights on their own invention but also on other inventions which are deemed “functionally
equivalent”, and to a certain extent on improvements of their inventions. Patents that are too broad allow their holders to
“pre-empt the future”, while patents that are too narrow discourage research that feeds into follow-on inventions. Other policy or
legal aspects have an impact on the patent system, including the amount of damages attributed by courts in case of infringement, the
conditions for exemptions for research use, etc. Taken together, these aspects determine the strength of patents. Overall, excessively
weak and narrow patents might deter business investment in R&D, as it becomes too easy for an imitator to undercut the inventor’s
market price. Weak and narrow patents may also encourage secrecy at the expense of publicity, and harm markets for technology,
hence hindering diffusion of technology. Conversely, excessively strong and broad patents may open the door to undesired
strategic behaviour by patent holders, who may use their titles to appropriate revenue from existing inventions marketed by
other companies. For instance, a broad patent on a basic invention with no substitutes may be equivalent to having an
exclusive right of exploitation over an essential facility, allowing its holder to bar follow-on inventors who would be willing to
invest in R&D to create socially useful applications. By carefully balancing these multiple instruments, policy makers can design
patent regimes that are favourable to both innovation and diffusion.
The TSM test is ineffective

The TSM Test was the test used before the KSR decision.
Oral Argument Transcript, KSR vs. Teleflex, The Supreme Court, 10-28-06,
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1350.pdf
[Mr. Hungar] Construed as the sole means of proving obviousness the teaching suggestion motivation test is contrary to
the Patent Act, irreconcilable with this Court's precedents and bad policy. It asks the wrong question and in cases like
this one, it produces the wrong answer. It should be rejected and the judgment of the Court of Appeals should be reversed.
CHIEF JUSTICE ROBERTS: What do you understand motivation to refer to in that test?
MR. HUNGAR: Well, it's not entirely clear, Your Honor. I think that it's sometimes difficult to distinguish, certainly between
motivation and suggestion. One way in which it is used for example, is if there were some indication in the prior art that doing
something a certain way might save money and then there would be a motivation to save money, which might supply the
requisite motivation for combining the two prior art references.
126
Patents Aff
PMA
DDI 2008 BQ
Changing System Bad
Changing Patent Rules Can lead to Instability in the System
Oral Argument Transcript, KSR vs. Teleflex, The Supreme Court, 10-28-06,
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1350.pdf
But I do want to just step back and make a point about judicial administration. If the ultimate conclusion of this Court is that teaching,
suggestion, motivation just boils down into an inquiry into obviousness, I still think that an opinion that says that and says that it, that
this Court believes that it is embracing the bottom line of what the Federal Circuit has been doing, is the one that will be much better
for the patent system and for the courts, because we have a real concern and that was articulated -- asked about at least by Justice
Ginsburg and Justice Scalia, and that is if you purport to change the rules unnecessarily, if you say we're going off in a different
direction, this test has -- underlies 160,000 patents issued every year. There is no rhyme or reason to applying a presumption
of validity if you're saying the patent examiner applied the wrong test. And it will create genuine dramatic instability.
127
Patents Aff
PMA
DDI 2008 BQ
Nano bad/squo innovation fails
Nanotech encourage biological warefare
Jurgen Altmann 04, cofounder of the German Research Association Science,
Disarmament and International Security FONAS, studied military uses of, first,
microsystems technologies and then nanotechnology, with a view towards
preventive arms control both at University of Dortmund, Germany.Security
Dialogue, vol. 35, no. 1, pp. 61-79, March 2004
With respect to chemical and biological weapons, on the other hand, NT will provide qualitatively new options.
One might be capsules that enclose active agents more safely, releasing them only when required. Together with
improvements in genetics, NT may enable chemical/biological weapons (the difference becomes fuzzy here) that
selectively react to certain gene patterns or proteins. Such weapons could be targeted at certain ethnic
groups or even single individuals, or might act against animal breeds or plant varieties. NT could also
be used for easier entry into the body or its cells. Mechanisms could be designed that limit or prevent
damage to own forces, such as self-destruction after a defined period of time or reliable inoculation.
The outcome of all this would be to make biological warfare much more manageable and effective. On
the other hand, NT might permit more sensitive sensors for chemical or biological warfare agents. NT materials with high
active surface areas could be used to bind and neutralize agents, or they could be used in protective equipment and for
decontamination of affected areas.
Current pace of US innovation fails – it’s slow and costly.
Unfortunately, the resulting pace of innovation generated by this public investment has not been sufficient given the urgency
and scale of today’s energy challenge. The various measures that it has employed (including direct federal support for RD&D,
indirect financial incentives, and mandatory regulations) have been developed and implemented individually with too little
regard for technological and economic reality and too much regard for regional and industry special interests. There has not
been an integrated approach to energy technology innovation that encompasses priority areas of focus, the responsibilities of
various funding agencies, and the mix of financial assistance measures that are available.
If the United States simply continues to pursue energy innovation as it has in the past, then the path to a low-carbon economy
will be much longer and costlier than necessary. We propose a new approach for energy RD&D in the United States that will
set in motion an innovation revolution by
* Creating an interagency Energy Innovation Council to develop a multiyear National Energy RD&D strategy for the United
States.
* Increasing the energy RD&D program budget to more than twice its current level.
* Launching a sustained and integrated energy R&D program in key areas.
* Establishing an Energy Technology Corporation to manage demonstration projects.
* Creating an energy technology career path within the civil service.
128
Energy Competition Bad - Alliance
Energy competition kills Japanese support of U.S. military policies in Iraq.

Emma Chanlett-Avery, Analyst in Asian Affairs - Foreign Affairs, Defense, and Trade, CRS report for Congress, “Rising Energy
Competition and Energy Security in Northeast Asia: Issues for U.S. Policy,” 2/9/05
=
Possible Mid-Term Implications

Bilateral Relationships with Asian Allies. The issue of energy security is an essential concern for the governments of Japan and South
Korea, America’s major partners in Asia. A fundamental basis for the U.S. alliances has been the maintenance of stability to promote
open trade and investment in the region. This arrangement has allowed Seoul and Tokyo to secure access to distant energy sources,
particularly in the Middle East. As competition intensifies because of China’s demand, the U.S. alliances might face new strains.
Japan’s and South Korea’s energy dependence, and any threat to existing supplies, may affect their willingness to support U.S.
policies, particularly in the Middle East. The tension between Tokyo and Washington over the Azadegan deal in Iran may foreshadow
more diplomatic difficulties ahead.
129
Patents High Now/ Patents can’t Solve
The US is one of the leading countries in patent production.
Nick Johnstone and Ivan Hascic, OECD Environment Directorate, OECD Observer, Eco-innovation, policy
and globalisation: Making a world of difference, 12/07,
http://www.oecdobserver.org/news/fullstory.php/aid/2342/Eco-
innovation,_policy_and_globalisation:_Making_a_world_of_difference.html
Take renewable energy first of all. Using the OECD patent database, we have identified innovations related to renewable energy
production for a panel of 26 countries over the period 1978-2003. A clear trend is that wind power, solar power and waste-to-energy
technologies have recorded continuous growth in patenting, particularly since the mid-1990s. Innovation with respect to ocean energy
has also been growing, but from a very low base, and more R&D in the future could change this picture. Not surprisingly, large
countries such as Germany, the US and Japan, along with France and the UK, have the highest number of patents in renewables.
However, relative to the size of the economy, a number of smaller countries appear as significant innovators in niche fields–Denmark
for wind, Switzerland for solar and geothermal, Austria for geothermal, Norway and Sweden for ocean power, and so on. If the patent
data is adjusted to reflect differences in the general propensity for inventors in different countries to patent, then Australia (for solar)
and Belgium (for wind) also rank among the top inventors–that is, a relatively large part of their inventive activity is devoted to
renewables.
Multiple factors drive investors towards crude oil – patents alone can’t solve.
Press release citing Daniel Yergin, chairman of Cambridge Energy Research Associates, CERA, 3/5/08,
http://www.cera.com/aspx/cda/public1/news/pressReleases/pressReleaseDetail
s.aspx?CID=9325
On current oil prices, Yergin added, “A major reason for the recent leap to $100 a barrel is the economy – but now a weak U.S.
economy and the credit crunch, rather than the strong global economy that has been so important the last few years. A slowing U.S.
economy, rate cuts by the Federal Reserve and expectations of more, and a weak U.S. dollar – along with the reappearance of inflation
around the world – are driving investors into oil and other commodities. Instead of the traditional ‘flight to the dollar’ during times of
uncertainty, we are seeing a ‘flight to oil.’ At the same time, rising costs in the oil field have put a higher floor under oil prices.”
130
USFG Fails
More money won’t cut it – a total rehaul of the USFG’s flawed approach
towards innovation is key to an innovation revolution.
The United States will not be able to achieve an innovation revolution until it addresses fundamental flaws in its approach to
RD&D—flaws that cannot be repaired simply by increasing federal funding.
First, the current federal approach to innovation is based on a linear sequential process: research, exploratory development,
engineering, system development, manufacturing, deployment, and logistic support. This model was developed (and has been
used successfully) by the Department of Defense (DOD), but it is not well suited to today’s energy innovation challenge. The
DOD’s primary RD&D objective is to create new technologies for its own use that meet set performance, schedule, and cost
objectives. Although some of this research has applications in the private sector and is widely adopted, the DOD process is not
designed specifically for broad commercial application.
Energy innovation, however, requires a market-driven rather than technology-driven approach to RD&D, because new energy
technologies are only useful insofar as they are adopted and deployed by private industry. This requires that the government
work closely with the private sector and environmental regulators to develop and demonstrate technologies that can be
profitable given existing and anticipated market conditions and environmental standards. This also has the important benefit of
creating some real assets, such as production facilities and intellectual property, that could enable the government to recoup a
portion of its outlay.
Fragmented agencies and limited resources dooms USFG solvency.
Second, the RD&D efforts of the involved federal agencies are not properly designed to meet the interdisciplinary and cross-cutting
challenge of energy innovation. Energy innovation requires coordinated and integrated progress on multiple fronts at multiple stages
of development in areas ranging from genetic research on plants to the industrial design of refineries. The government’s fragmented
approach reflects the prevailing RD&D model in which technology is developed to suit the needs of a single client (such as the agency
overseeing it), and thus the related work and needs of other agencies are not adequately considered. Furthermore, there is no single
governmental body responsible for harmonizing the disparate energy innovation efforts of DOE, the Department of Agriculture
(USDA), Department of Commerce (DOC), National Science Foundation (NSF), the EPA, and others. The government must instead
seek to reflect the trend in universities toward greater interaction and coordination among different fields of research. Until this
happens, limited resources will continue to be allocated inefficiently, thereby slowing the energy innovation process.
131
USFG Fails
Even if the USFG can develop new energy technology, it won’t be successful –
the private sector won’t adopt the new tech.
Sixth, successful innovation requires both the creation of new technology and the demonstration of technical performance,
economic feasibility, and compliance with environmental regulations. The federal government has had considerable success in
researching and developing new technologies; however, its record in the critical demonstration phrase, in which the technology
needs to prove its commercial value in order to be adopted by the private sector, is far weaker. The root cause of these
deficiencies is that energy projects are selected and R&D is undertaken without sufficient consideration or understanding of the
goals of the demonstration phase (the widespread adoption of technology by the private sector). Moreover, DOE and other
federal agencies lack the requisite financial and policy tools to carry out demonstrations in a manner that is credible to private
investors.
132
Innovation High Now
The US is still on top for alternative energy innovation.
Nashville Business Journal, “U.S. still leads world in technology innovation,” 6/4/08,
http://sacramento.bizjournals.com/nashville/stories/2008/06/02/daily32.html
Despite greater competition from other countries, the U.S continues to lead innovation across a swath of technology sectors,
according to a survey released this week.
The 2008 Global Venture Capital Survey, which included opinions from almost 400 venture capitalists, was conducted by
Deloitte LLP and the National Venture Capital Association.
The U.S. maintained its top ranking in each of the sectors measured -- semiconductors, software, biopharmaceuticals, medical
devices and clean technology.
Germany ranked second for innovation in alternative energy and medical devices, while 15 percent of the VCs surveyed named
Taiwan as second to the U.S. in having the best semiconductor technology.
"While the U.S. isn't losing ground, the globalization of innovation is underway," said Mark Jensen, national managing partner
of Deloitte's venture capital services.
Last year VCs put almost $9 billion -- or one-fifth of the money invested -- into international investments, with about $2.5
billion going to China and India.
133
No Energy War
No energy war – free markets solve.
Ronald Bailey, science correspondent for Reason magazine, Reason, “Peak Oil Panic,” 5/06,
http://www.reason.com/news/show/36645.html
Instead of preparing for an energy war, the best policy is to let markets have free rein. Even if, say, the Iranians make the
political decision to disrupt the flow of oil to world markets, those markets left to themselves will eventually discipline them.
The temporarily higher prices will encourage more exploration and technological advances, which will bring energy prices
back down. On the day of his inauguration in 1981, President Ronald Reagan lifted oil price controls. Five years later oil prices
fell below $10 a barrel.
One day, the oil age will end. As with all resources, there is ultimately a finite supply of oil. So it is not yet clear how the world
will power itself for the bulk of the coming century. But we have at least another three decades to find alternatives to
petroleum. “Trusting markets is the only way we can assure energy abundance in the future,” notes the University of Houston’s
Economides. “It’s also the only way that we will ever transition to something other than oil and gas.”
134
Energy Efficiency CP
Increased energy efficiency is the best way to boost the US energy economy –
it conserves energy without forcing lifestyle changes on the part of the
consumer.
Energy: A Viable Choice, 12/01, p. 6-7 [http://rael.berkeley.edu/files/2001/Herzog-Lipman-Edwards-Kammen-RenewableEnergy-
2001.pdf]
Energy efficiency is the single greatest way to improve the U.S. energy economy. Based on data published by the Energy
Information Administration (EIA), the American Council for an Energy Efficient Economy (ACEEE) estimates that total energy use
per capita in the United States in 2000 was almost identical to that in 1973, while over the same period economic output (measured by
Gross Domestic Product or GDP) per capita increased 74 percent. Furthermore, national energy intensity (energy use per unit of GDP)
fell 42 percent between 1973 and 2000, with about 60 percent of this decline attributable to real improvements in energy efficiency
and about one-quarter due to structural changes and fuel switching. Between 1996 and 2000, GDP increased 19 percent while primary
energy use increased just 5 percent. These statistics clearly indicate that energy use and GDP do not have to grow or decline in lock
step with each other, but GDP can, in fact, increase while energy use does not.
The federal government’s energy efficiency programs have been a resounding success. Last year, DOE documented the results of 20
of its most successful energy efficiency and renewable energy technology initiatives over the past two decades.
These programs have already saved the nation 5.5 quadrillion BTU (British Thermal Units) of energy, equivalent to the amount of
energy needed to heat every household in the United States for about a year, and worth about $30 billion in avoided energy costs.
Over the last decade, the cost to taxpayers for these 20 activities has been $712 million, less than 3 percent of the energy bill savings
that the programs created.
In 1997, the President’s Committee of Advisors on Science and Technology (PCAST), a panel that consisted mainly of distinguish ed
academics and private-sector executives, conducted a detailed review of DOE’s energy efficiency R&D programs. PCAST concluded,
“R&D investments in energy efficiency are the most cost-effective way to simultaneously reduce the risks of climate change, oil
import interruption, and local air pollution, and to improve the productivity of the economy.” PCAST recommended that the DOE
energy efficiency budget be doubled between fiscal years of 1998 and 2003. They estimated that this could produce a 40-to-1 return
on investment for the nation, including reductions in fuel costs of $15 billion to 30 billion by 2005 and $30 billion to 45 billion by
2010. Funding for these DOE programs in the last several years has fallen far short of the PCAST recommendations.
Increasing the efficiency of homes, appliances, vehicles, businesses, and industries must be an important part of a sound national
energy and climate-change policy. Increasing energy efficiency reduces energy waste (without forcing consumers to cut back on
energy services or amenities), lowers GHG emissions, saves consumers and businesses money (because the energy savings more than
pay for any increase in first cost), protects against energy shortages, reduces energy imports, and reduces air pollution. Furthermore,
increasing energy efficiency does not create a conflict between enhancing national security and energy reliability on the one hand and
protecting the environment on the other.
135
Patent Trolls
Patent Trolls are Hurting Big companies
Wall Street Journal 8-14-08
Companies as diverse as Verizon, Google, Cisco and Hewlett-Packard recently formed the Allied Security Trust to buy patents they
may want to use some day and that otherwise could end up in the hands of "patent trolls." These firms buy up old patents not to
produce anything, but instead to work the system to extract settlements. A similar group formed against trolls to protect the Linux
open-source operating system. A Google executive explained that helping to buy up and license patents is the "legal equivalent of
taking a long, deep, relaxing breath." Companies can rest easier, and legitimate inventors get paid for their work.
Patent Trolls Bad – Laundry List
They have been labeled intellectual property "ambulance chasers," n142 "patent system bottom feeders," n143 and patent
"terrorists." n144 They are "patent trolls." n145 Critics have assailed patent trolls as companies that neither produce products nor
commercialize patents but merely shake down, to the detriment of their prey, innocent companies attempting to create and sell
products, with the consequence that the freeloading patent troll causes a stifling effect on innovation and threaten injunctions
with the ensuing social harm to the free market that results from reduced competition. n146 Also, some claim that patent trolls
exploit solo inventors, small companies, and those on the brink of bankruptcy by obtaining the patents for a nominal sum and
then greatly leveraging the acquired patents into a license mill without engaging in innovative activities and for royalty rates
far in excess of the claimed invention of the threatened patent. n147 [*440] Still others decry that, instead of investing capital to
develop inventions, the troll's goal is to obtain ambiguous patents with inordinately broad claims of questionable validity and
then banking on the presumption of validity and cost of litigation in order to snatch a nuisance settlement. n148 Other critics
lambaste patent trolls for, rather than advancing science or technology, using a patent (thought but not proven) to have a
futuristic quality whereby the troll need merely wait for the industry to grow up around the patent and then hold up
unsuspecting infringers by threatening those companies with baseless (but costly) lawsuits that would shutdown or otherwise
cripple the would-be defendant with large damages and the costs of defense.
136
Patent Trolls Bad
Patent Trolls Discourage Innovation
In a very real sense, the fight casts economics against the nexus of patent law and junk science. Before there were patent laws,
the inventor had no guarantee against others using the invention, so now patent law gives the inventor a monopoly for a
limited time to exclude others from practicing the invention as claimed in the patent - even what might amount to nothing
more than a paper patent. n11 When facing a cease and desist letter from a patent troll wielding a paper patent, however, the
recipient can quickly estimate from published literature the likelihood of finding itself in a morass of litigation costs and easily
sinking millions in defending against a patent infringement lawsuit. One can little blame the would-be defendants for settling
with the patent trolls, because patents are presumed valid as a matter of patent law, n12 which places on the defendant n13 the
burden of proving the patent invalid by a standard of clear and convincing evidence. n14 In this competitive market, the
decision maker can ill afford to ignore sunk costs in legal fees that bite into the proverbial bottom line, but must instead pay
close attention to the reality of attorneys' fees billed in six minute increments. Consequently, rather than "promote" science as
envisioned in the Constitution, a patent monopoly over a mere paper patent - foisted by a patent troll - actually cripples
legitimate research and development, stymies innovation, and chills healthy competition. The patent troll or inventor of these
paper patents receives the boon of the patent monopoly, but the "useful arts" that the Constitution so nobly seeks to advance
is not promoted. [*413] Now, more than ever before, the challenge to America and to the assault on a free-market system is
not with Lincoln's fuel of interest or fire of genius, but with a patent system that awards - and rewards - patent monopolies for
heretofore apocryphal "perpetual motion machines" and "cold fusion."
137
Patent Boom
Patent Boom Bad

Steven P. Smith (Indiana University School of Law) and Kurt R. Van Thomme (Drake University Law School, 2005) 2007
Albany Law Journal of Science & Technology. “BRIDGE OVER TROUBLED WATER: THE SUPREME COURT'S NEW
PATENT OBVIOUSNESS STANDARD IN KSR SHOULD BE READILY APPARENT AND BENEFIT THE PUBLIC.”
<http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?
docLinkInd=true&risb=21_T4185321428&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T4185308609&cis
b=22_T4185321430&treeMax=true&treeWidth=0&csi=148364&docNo=1>
Other factors relevant to defining a PHOSITA attempt to show the level of skill in the art from the prior art perspective, such
as the types of problems typically encountered in the art, solutions to those problems appearing in the prior art, the rate of
innovation in the relevant art, and the sophistication of the technology used in the art. n175 Basing the level of ordinary skill in
the art on these prior art-centric metrics has some appeal as it appears more objective than examining the level of skill from a
"human" perspective - i.e., based on the perspective of either the inventor or some member of the industry. Indeed, the record
of innovation in the art is fixed, and thus should not be as prone to alteration as when the level of skill is measured via workers
in the field or the inventor. These prior art-centric PHOSITA considerations, however, have their own disadvantages. For example,
in a field where much innovation occurs and thus many patents exist, the validity of a truly beneficial invention could
undeservingly be clouded among the sea of prior art in the field [*164] simply because of the vastness of the prior art's
description of problems and solutions and its sophistication.
High Quality Patents Are Essential For Continued Innovation
The bottom line in this is there should be no question that the U.S. patent system produces high quality patents. Since
questions have been raised about whether this is the case, the responsibility of Congress is to take a close look at the
functioning of the patent system... . High patent quality is essential to continued innovation. Litigation abuses, especially ones
committed by those which thrive on low quality patents, impede the promotion of the progress of science and the useful arts.
Thus, we must act quickly to maintain the integrity of the patent system. n97 This Congressional attempt to adopt a
meaningful patent reform aimed, in part, at a proverbial cleaning house of low quality patents will impact all companies,
patent owners, and Americans, and reflects the importance that maintaining a high standard of good patents, while mitigating
the harm caused by bad patents, will have on the US economy.
138
Patent Boom
Technological Niches Can Get Overcrowded By Too Many Patents-This Hurts
Innovation
In this vein, Fleming, Sorenson, and their collaborators n127 used patent citations in combination with the USPTO classification system
to explore the way in which innovation proceeds as a process of search and recombination of prior technologies. They argue that
successful innovation is a balance between re-using familiar components - an approach that is more certain to succeed - and
combining elements that have rarely been used together - an approach that is more likely to fail entirely, but also more likely
to result in radical improvements. [*1342] Podolny and Stuart and collaborators also made explicit use of social network
analysis by using a basic network measure of local network structure, the transitivity, to study the innovative process. n128
Transitivity measures the likelihood that two nodes that are connected to a specific third node are also connected to one
another. Figure 12 illustrates this concept. In the patent context, transitivity measures the likelihood that two patents that cite or
are cited by the same patent also cite one another. Podolny and collaborators used transitivity-type quantities to define local
measures of competitive intensity and competitive crowding based on indirect patent ties. n129 A basic insight of their work is
that if many innovations are building on the same technological antecedents, and thus contributing very similar technological
outputs, the likelihood of a new entrant into the associated niche is lowered. They used network transitivity measures to
observe how a technological niche can become popular, but then overly crowded and "exhausted" as a result of a flurry of
inventive activity in the niche. They point out that counting the numbers of citations made or received is not sufficient to identify
crowded niches - an innovation that provides a technological foundation for a variety of unrelated advances will be highly cited
without crowding. Transitivity measures thus show promise as means to distinguish patents in hot fields from broad, important
patents. Studying network metrics and their evolution over time thus allows us to delve into the way in which inventions are
combined, recombined, and re-used to produce new innovations. In the future, we can build on our work and the social science studies
discussed above by combining the approaches. For example, we might investigate the extent to which delayed citations in the power
law tail of the A<l>(l) function target patents with high "originality" (low transitivity) which connect disparate technologies
139
Patent System Flawed
The Patent System Is Flawed – It No Longer Promotes Innovation And Progress
In recent years, an increasing number of attacks have been levied against the United States Patent and Trademark Office
("Patent Office") for the quality of examination it gives to patent applications, and critics have scrutinized this examination as
resulting in the Patent Office granting patent claims that are broader than the invention merits. n17 Amidst this criticism lies an
[*415] undercurrent of cries to reform the Patent Office, which - though not perfect - serves an invaluable function in the
goal of promoting science and progress.
140

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KSR KILLED PATENTABILITY.........................................................................20

PATENTS KEY TO INNOVATION.....................................................................32

PATENTS KEY TO INNOVATION.....................................................................33

PATENTS KEY TO INNOVATION ....................................................................34

PATENTS KEY TO INNOVATION.....................................................................35

PATENTS KEY TO INNOVATION.....................................................................36

PATENTS BETTER THAN SECRECY.................................................................37

ONLY PATENTS SOLVE.................................................................................39

KSR DECISION HURT INNOVATION................................................................40

RENEWABLE ENERGY TECH LOW - GERMANY.................................................42

RENEWABLES GOOD/INVESTMENT KEY.........................................................43

RENEWABLE ENERGY = INVESTORS LIKE......................................................44

LONG-TERM FOCUS KEY..............................................................................45

RENEWABLE ENERGY LOW...........................................................................49

US INNOVATION KEY – ECONOMY/COMPETITIVENESS.....................................51

US COMPETITIVENESS LOW - TRADE.............................................................53

US INNOVATION KEY – ECONOMY.................................................................55

INNOVATION GOOD – MULTIPLE REASONS....................................................58

INNOVATION GOOD – MULTIPLE REASONS....................................................59

INNOVATION GOOD – ECONOMY...................................................................60

INNOVATION KEY – GLOBAL EMISSIONS........................................................61

COMPETIVENESS ALTERNATIVE IMPACT SCENARIO........................................62

COMPETIVENESS ALTERNATIVE IMPACT SCENARIO........................................63

TSM GOOD: ALT ENERGY SPECIFIC...............................................................72

TSM GOOD – FLEXIBLE.................................................................................86

AT: TSM TOO RESTRICTIVE..........................................................................88

A2: T PATENTS AREN’T INCENTIVES.............................................................89

A2: FUNDING CP ........................................................................................93

A2: FUNDING CP.........................................................................................94

A2: MONETARY PRIZE CP.............................................................................95

PATENTS GOOD – TRADE SECRETS...............................................................96

PATENTS GOOD – TRADE SECRETS...............................................................97

PATENTS = LONG-TERM GROWTH................................................................98

KSR BAD – LESS PATENTS..........................................................................106

A2 BROAD PATENTS BAD...........................................................................116

AT: PATENT BOOM....................................................................................117

AT: PATENT BOOM....................................................................................118

AT: PATENT TROLLS..................................................................................120

AT: PATENT TROLLS..................................................................................121

AT: PATENT TROLLS..................................................................................122

AT: PATENT TROLLS..................................................................................123

NEG EV..................................................................................................... 124

TSM BAD/LOW QUALITY PATENTS BAD........................................................ 126

CHANGING SYSTEM BAD............................................................................127

NANO BAD/SQUO INNOVATION FAILS.......................................................... 128

ENERGY COMPETITION BAD - ALLIANCE......................................................129

INNOVATION HIGH NOW............................................................................133

NO ENERGY WAR....................................................................................... 134

ENERGY EFFICIENCY CP.............................................................................135

PATENT TROLLS........................................................................................ 136

PATENT TROLLS BAD................................................................................. 137

PATENT SYSTEM FLAWED..........................................................................140

1. Supreme Court Raised the Bar for Obtaining a Patent

2. Patent Procurement Rates in the Alternative Energy Sector Went Down as

3. The KSR decision is blocking patents on innovative and new alternative

1. Lack of policy consistency has crippled US energy leadership – we now

2. Renewable energy innovation is key to international competitiveness.

1. Overturning KSR key to private sector adoption and commercialization –

3. There is no evidence that the TSM standard leads to bad patents.

The KSR Decision Will Result in Higher Standards for Patents

The KSR decision defeated the entire patent system

The KSR decision unbalanced the patent system.

The Ability to Procure Patents is Key to the US Economy