MIKE PESCA, host:

Back now with DAY TO DAY. Millions of U.S. patents could be affected by a case before the Supreme Court today. It involves a patent for an adjustable gas pedal. MARKETPLACE'S Janet Babin is here. And, Janet, tell us a little bit about the case, if you would.

JANET BABIN: Hey, Mike. This case is about a patent dispute between Teleflex and KSR. Teleflex holds a patent for an adjustable foot pedal. It's used a lot in SUVs, and it can electronically adjust to different-height drivers so they can be closer or further away from the pedal. Now, KSR used this pedal design, gas pedal design, and Teleflex sued them claiming patent infringement. The lower court agreed with KSR, but the higher court sided with Teleflex. KSR then petitioned the Supreme Court.

PESCA: So why does this case go beyond the facts right there? Why can it (unintelligible) patent law?

BABIN: Yeah, like a lot of cases, it's going to affect more than just the two people involved or companies involved in the case. It could end up changing the standard that all U.S. courts use to decide what's obvious when it comes to handing out patents. Many tech companies like Microsoft, Intel, and SISCO think the court should raise the bar on what's considered obvious.

You know, critics say too many companies are getting patents these days, and the case often cited to prove this has to do with Halloween trash bags. You might have seen these, Mike. There is a patent for those big yellow trash bags with jack-o'-lanterns on them. The court found that even though there had been paper bags printed with jack-o'-lanterns, it wasn't obvious to put that design on a plastic trash bag. Josh Lerner is a professor at Harvard Business School.

Professor JOSH LERNER (Business, Harvard University): To me, I guess I don't really see that as a flash of genius or something that, you know, somebody who is skilled in the arts of plastic bag design would really see as this kind of innovative breakthrough.

BABIN: But, you know, proponents of the current system say that with hindsight it's easy to call every invention obvious.

PESCA: Yeah, listen to the professor turning down his nose at innovative jack-o'-lantern trash bag design. So what are companies - who are companies siding with? Do they want to this of this gas pedal as innovative, or are a lot of companies saying no, that is obvious. Let's lower the bar on what's obvious?

BABIN: Well, a lot of the companies are siding with Teleflex. They want to protect their patents. Proctor & Gamble, Johnson & Johnson, 3M - they filled friend-of-the-court briefs. Robert Stern is co-counsel for Teleflex. He says you know, U.S. research and development depends upon our current system.

Mr. ROBERT STERN (Attorney for Teleflex): The United States has migrated into this world-is-flat economy, and if we cannot protect our R&D, then the question is where are the high-paying jobs going to come from?

BABIN: So we'll just have to see what happens today, Mike. Coming up later today on MARKETPLACE, we're going to take a look at another major case before the high court today about CO2 emissions.

PESCA: Thanks, Janet. Janet Babin of public radio's daily business show MARKETPLACE. It's produced by American Public Media.

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