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Good New Obviousness Paper
July 13, 2006
Sean McEldownley (a 2005 Penn Law grad, former part-time RA, and all-round outstanding patent lawyer) has just published New Insights on the “Death” of Obviousness: An Empirical Study of District Court Obviousness Opinions [pdf] in the Stanford Technology Law Review.
The title basically explains the overall project: an exploration of district court results in obviousness cases. One important feature of this study is that McEldowney compares obviousness results from the 1970s and 1990s -- that is, before and after the Federal Circuit's development of the doctrine. He develops five empirically-verifiable conclusions:
As compared with the 1970s:
- Fewer district court opinions reached the question of obviousness in the 1990s;
- A smaller number of individual district courts issued a greater proportion of the obviousness opinions published in the 1990s;
- When district court cases reached the question of obviousness, they were less likely to invalidate a patent as obvious in the 1990s;
- When district court cases reached the question of obviousness in the 1990s, they were less likely to invalidate complex patents than simple patents; and
- Regional variation among the circuits in the rates of obviousness did not decrease between the 1970s and 1990s.
From these one can draw a number of interesting conclusions; McEldowney notes several possibilities, as well as potential avenues for further research.
Overall, a good read, an interesting project (and refreshingly efficient - only 22pp long!).
Posted in Federal Circuit, Patents, Patents | Permalink
