DriveSol's court papers describe the case as a "simple infringement dispute," while KSR argues that the appeals court's interpretation of the law is out of synch with previous Supreme Court rulings.
Both sides agree on the importance of the underlying issue of what can be patented.
"How big does an innovation have to be before it merits a patent?" Dabney said. "That's probably the single most important issue in patent law."
Susser calls the issue "a critical public policy issue," but insists that it doesn't belong in the Supreme Court. Instead, he said, any change in patentability standards should be left to Congress or "the internal working of the Patent and Trademark Office."
"I don't think the standard is broken now," Susser said. "I think it's being applied properly. KSR just didn't like the result."
And if KSR wins in the Supreme Court, he said, "It will be more difficult for the small inventor, not the Microsofts or Hewlett-Packards of the world."
Microsoft Corp. is among five major companies filing a friend-of-the-court brief supporting KSR.
Dabney predicted that even if the Supreme Court refuses to hear the case, KSR will win at trial because "We have a very strong noninfringement case." But, he said, it would be better for the Supreme Court to answer the legal question.
"We're hopeful the great cloud and great cost of doing business will be lifted from the backs of manufacturers and users of complex technologies in the United States," Dabney said.
The Supreme Court has no deadline for deciding whether it will take the case.
You may e-mail Eric Freedman at [email protected]