In Rolls-Royce, PLC v. United Technologies Corp., 2010 U.S. App. LEXIS 9201 (Fed. Cir. May 5, 2010) the Federal Circuit prefaces a discussion of obviousness with this language:  "To preclude hindsight in this analysis, this court flexibly seeks evidence from before the time of the invention in the form of some teaching, suggestion, or even mere motivation (conceivably found within the knowledge of an ordinarily skilled artisan) to make the variation or combination."  Id. *27-28 (Bold added).  There is nothing in this quote stating that the motivation may come from a design need or market pressure.  Instead, the Federal Circuit only specifically refers to motivation arising from the "knowledge of an ordinarily skilled artisan." 

The Federal Circuit's language does not strictly track the language used by the U.S. Supreme Court in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417, 421, 127 S. Ct. 1727, 167 L. Ed. 2d 705 (2007) when it addressed whether an invention was obvious to try and therefore obvious.  KSR stated that, "When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp."  Id. (Bold added).  Thus, in KSR, motivation could come from design needs and market pressures.

A version of a flexible TSM test is seen in this quote where the Federal Circuit addresses an argument that the invention would have been an easily predictable and achievable variation:  "For all of these reasons, the record contained no evidence that would have suggested to or motivated an ordinarily skilled artisan to sweep the fan blade forward in the outer region. Thus, the record supports the district court's conclusion that this variation would not have been obvious."  Rolls-Royce at *29 (Bold added).  This language could be used to argue against a rejection of an application based on lack of suggestion or motivation.  So these pre-KSR arguments are still available under this decision, as long as one uses the terms suggestion and motivation in a flexible way.

But, in discussing "obvious to try", the Federal Circuit did swing back into greater consistency with KSR by acknowledging that motivation could include design needs and market pressures.  "A particular course or selection is not obvious to try unless some design need or market pressure or other motivation would suggest to one of ordinary skill in the art to pursue the claimed course or selection."  Id. at *31. 

Thus, the Rolls-Royce opinion ultimately steers back to greater consistency with KSR.  Nonetheless, the first quotation, taken literally, is a more "flexible" version of the overruled Teaching, Suggestion, Motivation test.  And strictly speaking, the KSR did not repudiate a more flexible TSM test:  "We note the Court of Appeals has since elaborated a broader conception of the TSM test than was applied in the instant matter."   KSR, 550 U.S. at 421-422.  But this flexible TSM test was not before the Court in KSR. 

MPEP 2141 (III) acknowledges that a flexible TSM test may be used to make obviousness rejections and includes a flexible TSM in a list of possible bases for rejecting a claim as obvious.  But in Rolls-Royce, the Federal Circuit uses, in part, a flexible TSM test to reject a finding of obviousness.  Time will tell how far the Federal Circuit will go in putting some teeth into a more flexible version of the TSM test.