Aggregation Test, Mere

A test for Obviousness in US patent law originally set forth in Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U.S. 545 (1938) and later reiterated in Sakraida v. AG Pro, Inc., 425 U.S. 273 (1976), which holds that merely aggregating a collection of well known but old ideas or elements into a single device or method is not sufficient to justify a patent, i.e., that when an inventor “simply arranges old elements with each performing the same function it had been known to perform, although perhaps producing a more striking result than in previous combinations. Such combinations are not patentable.”

Although, in principle, still good law, the aggregation test has, for the last few decades, fallen into disuse, undermined by the Federal Circuit’s Teaching-Suggestion-Motivation (TSM) Test. However, in early 2007 US Supreme court in KSR v. Teleflex, 127 S. Ct. 1727 (2007) criticized the application of the TSM test (Justice Scalia went so far as to describe it as “gobbledygook”) as too rigid and formulaic.

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