KSR Fallout: Questions of Law Based on Findings of Fact and the Continuing Problem of Hindsight Bias

by Adam Powell –

KSR v. Teleflex marked the Supreme Court’s first significant return to the question of patent “obviousness”—which is used to ensure patents are not improvidently granted to inevitable inventions—in over four decades.  If a jury finds an invention would have been obvious to one of ordinary skill in the art at the time the invention was made, the court is likely to find the patent invalid.  The changes mandated by KSR to non-obviousness determinations provide the opportunity to adjust jury instructions in order to address existing problems in non-obviousness law.

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