The Federal Circuit has moved its marker for obviousness since its KSR v. Teleflex ruling, most recently Dystar v. Bann. That ruling inches up to Sakraida v AG Pro (1976), which has been ignored, but is not as brightline as the design patent anticipation standard espoused in Sakraida: all old elements and no new elements is old news.

Accordingly, the District Court properly followed our admonition in Great A. & P. Tea Co. v. Supermarket Corp., supra, at 152: "Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements. . . . A patent for a combination which only unites old elements with no change in their respective functions . . . obviously withdraws what already is known into the field of its monopoly and diminishes the resources available to skillful men. . . ."

To this commentator, Sakraida is sophistic, stepping right into territory that should be marked impermissible hindsight, but it would be a refreshing mark of competency if the Supreme Court would either affirm Sakraida outright or codify the status quo of CAFC rulings with regard to the fine line between obviousness and impermissible hindsight, and not be as self-indulgent or ill-disciplined as has marred its other rulings, notably the tangential sniper shots in MercExchange v. eBay.

The Dystar standard for PHOSITA seems somewhat reasonable from where this invalidity specialist sits, though its application in prosecution is problematic, as an examiner capriciously assumes the role of deciding PHOSITA.

The root problem of 103(a) is statutory: badly drafted. Real patent reform would be legislative clarity, especially on this issue.