Cycles of Obviousness

63 Pages Posted: 20 Jun 2019 Last revised: 31 Jan 2020

See all articles by Hon. Ryan T. Holte

Hon. Ryan T. Holte

The University of Akron School of Law; United States Court of Federal Claims

Ted M. Sichelman

University of San Diego School of Law

Date Written: November 15, 2019


In 2007, the Supreme Court’s decision in KSR v. Teleflex echoed earlier vicissitudes in the history of patent law when the Court considerably expanded the circumstances in which a patent could be found obvious. Here, we conduct the first comprehensive empirical study of pre- and post-KSR district court and Federal Circuit decisions. Not surprisingly, following KSR, we find a substantial increase in findings of obviousness as well as a major shift in doctrine supporting these decisions. Although we find that the Federal Circuit substantially altered course following KSR, its shift was less robust than in the district courts. We speculate that these differences between the Federal Circuit and district courts, as well as the vacillating historical meanings of the nonobviousness requirement, reflect divergent views among judges regarding the appropriate role nonobviousness should play in promoting patent law’s fundamental aim of incentivizing innovation. As such, we predict continued shifts and cycles of this critical component of patentability.

Keywords: patents, patent law, obviousness, empirical, Supreme Court, Federal Circuit, district courts, KSR

JEL Classification: K39, O34

Suggested Citation

Holte, Hon. Ryan T. and Holte, Hon. Ryan T. and Sichelman, Ted M., Cycles of Obviousness (November 15, 2019). 105 Iowa Law Review 107 (2019), San Diego Legal Studies Paper No. 20-432, Available at SSRN:

Hon. Ryan T. Holte

The University of Akron School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
4156152789 (Phone)


United States Court of Federal Claims ( email )

717 Madison Place, NW
Washington, DC 20005
United States

Ted M. Sichelman (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
(619) 260-7512 (Phone)
(619) 260-2748 (Fax)

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