Cycles of Obviousness
63 Pages Posted: 20 Jun 2019 Last revised: 31 Jan 2020
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: Suggested Citation