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In April 2007, the Supreme Court's decision in KSR
Int'l v. Teleflex Inc. heralded an important potential
shift in the law of obviousness. The Federal Circuit has now
delivered 100 post-KSR opinions (excluding summary
affirmances) that address obviousness.1 As in the past,
we have continued to follow and analyze these decisions. The charts
attached provide a breakdown of the cases by holding, affirmance or
reversal, and patented subject matter. The cases fall into three
main categories: (1) The Life Sciences and Chemical Arts; (2)
Computers, Software, Internet, and Electronics; and (3) Mechanical
Arts and Miscellaneous Cases. Each major category is subdivided
down into additional industrial subcategories. Aggregate results
follow each table and section.
Some highlights from the overall statistics and emerging trends
include:
The Federal Circuit has held the claims at issue obvious in 52%
of cases. This percentage has held relatively steady over the past
two and a half years with obviousness holdings in 53% of cases
through the end of 2010 and 52.1% of cases through the end of
2011.
Patent claims in the Life Sciences and Chemical Arts have
emerged as the most difficult to render obvious with
non-obviousness holdings from the Federal Circuit in 60.8% of cases
(up from 55.3% through the end of 2010).
Patent claims in the Mechanical Arts and Miscellaneous category
were invalidated as obvious in 80% of decisions from the Federal
Circuit.
In the Computers, Software, Internet, and Electronic Arts Cases
context, claims were invalidated as obvious in 52.2% of cases.
Within the pharmaceutical subcategory, new chemical entity
(NCE) cases were the most likely to result in a non-obviousness
holding at 76.9%; in sharp contrast, 60% of non-NCE pharmaceutical
cases resulted in an obviousness holding.
Of the 100 cases analyzed, 28 decisions were reversals in chief
of the district court decision on obviousness, whereas 72 decisions
were affirmances.
Among the 28 reversals were 19 decisions (67.9%) that held the
claim(s) obvious in contravention of the decision below.
The Federal Circuit reversed the holding by the lower court on
the issue of obviousness in only one out of 23 cases (4.3%) in the
Computers, Software, Internet, and Electronic Arts area, whereas
the reversal rate in the Mechanical Arts and Miscellaneous cases
was 52%.
Please click on the download attachment below to view the
charts.
1 Decisions on appeal from the Board of Patent Appeals
and Interferences have been excluded from this analysis, as those
cases implicate a different standard of proof.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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