Raising the Bar for Nonobviousness: An Empirical Study of Federal Circuit Case Law Following KSR

Abstract

In KSR International Co. v. Teleflex Inc., the Supreme Court rejected the “rigid” application of the Federal Circuit’s “teaching, suggestion, motivation” test for obviousness. Despite the readily-apparent importance of this decision, it was hard to gauge the extent to which it would affect outcomes of obviousness decisions at the Federal Circuit. This paper reports an empirical study of all Federal Circuit decisions on obviousness in the two and a half years following KSR that documents a remarkable shift in the Federal Circuit’s willingness to uphold findings of obvious below. The Federal Circuit is now much less likely to reverse a lower-tribunal finding that a patent is obvious than a finding that a patent is nonobvious. During the two and a half year post-KSR period studied, the Federal Circuit did not reverse a single lower-tribunal determination of obvious. Further, obvious findings below were affirmed in 81.08% of all decisions. Nonobvious findings below, by contrast, were affirmed just 52.50% of the time. These and other findings are reported in detail, and are compared to the results of empirical studies of obviousness cases at the Federal Circuit reported prior to the KSR decision.