The data associated with our recent paper, The Federal Circuit and Patentability: An Empirical Assessment of the Law of Obviousness, is available below (in Excel [.xls] and Comma-Separated-Value [.csv] formats).

// Summary of the Dataset //
- Start Date: March 8, 1990
- End Date: May 25, 2005
- Records: 480
- Inclusion criteria: An observable analysis of obviousness in a Federal Circuit opinion from 1/1/1990 to 5/25/2005. (Note that this means that there are more records than cases.)

// Data Files //
- Field Descriptions [ XLS File ] [ CSV File ]
- Data File [ XLS File ] [ CSV File ]

The presentation given at the 2006 Frontiers of IP Conference at the University of Texas on November 11, 2006 is now available. It's available in both PDF and (interactive) Quicktime formats.

Files: [ .pdf ] [ .mov ]

In KSR Int'l Co. v. Teleflex, Inc., No. 04-1350 (April 30, 2007), the Supreme Court—reentering the area of obviousness after a 31-year hiatus—unanimously reversed a Federal Circuit decision that concluded that further fact finding was necessary to determine whether the patent claim in suit is obvious. But while the outcome on the merits was widely anticipated by the bar, the substance of the Court’s opinion is a remarkable surprise.

We've updated our paper, The Federal Circuit and Patentability: An Empirical Assessment of the Law of Obviousness, 85 Tex. L. Rev. __ (2007). The new version includes an Epilogue addressing the Supreme Court's KSR v. Teleflex opinion of earlier this month, as well as minor changes throughout. You can download the paper via SSRN, here.

In its recent decision in KSR Int'l Co. v. Teleflex, Inc., the Supreme Court embraced a legal standard for obviousness that is in principle identical to the one the federal circuit currently uses. See The Supreme Court and the Modern Obviousness Standard. However, a little discussed aspect of the case may have significant repercussions for patent litigants. In particular, the decision may, for some period of time, have created a litigation topography more favorable to summary judgment.

As commentators jockey for position concerning the prospective impact of the Supreme Court’s decision in KSR Int'l Co. v. Teleflex, Inc., evidence is accumulating that as far as the federal circuit is concerned the song, indeed, remains the same.

Different sources report that two federal circuit judges have gone on record with comments indicating that the opinion of the Supreme Court will not require a significant reworking of federal circuit law.