This article presents a novel empirical study that argues the Supreme Court’s decision in KSR v. Teleflex has had a significant effect on the law of obviousness. The results presented here suggest that after KSR both the Federal Circuit and the District Courts are more likely to render patents invalid as obvious. This showing contradicts a commonly held belief that KSR did not change the law of obviousness significantly. Next, the study reveals that the effect of KSR is not necessarily connected to the text of the Supreme Court’s opinion. Rather, the Federal Circuit reacted to the Supreme Court’s granting of cert to KSR by invalidating a relatively high percentage of patents—both for obviousness and anticipation—during the period in which KSR was pending before the Supreme Court. Together, the results of the study signify the positive fact that the Federal Circuit is aware of and sensitive to criticism by members of the patent bar and the academia. But the results also cast doubt on whether the text of judicial opinions is a reliable source of figuring out what the law truly is.
- intellectual property,
- federal circuit,