This Note presents an empirical study of district court opinions that reached the question of obviousness—one of the core requirements for patent validity—in patent suits. The doctrine of obviousness has befuddled courts and litigants since the Supreme Court’s 1851 statement that patentable invention requires some nebulous level of ingenuity and skill. By the 1970s, frustration with the obviousness doctrine had reached fever pitch, and Congress responded by centralizing patent appeals in the United States Court of Appeals for the Federal Circuit.
Empirical analyses of obviousness and other patent validity doctrines in the federal court system have generally found that patents are invalidated less often since the Federal Circuit’s inception in 1982. These findings have led some scholars to conclude that the Federal Circuit has exerted a strong pro-patent bias in the federal court system and effectively lowered the hurdles of patentability. However, previous studies of obviousness have largely failed to directly compare cases from the pre- and post-Federal Circuit time periods or to consider district courts’ use of the obviousness doctrine.
This Note attempts to fill this void in the study of obviousness by comparing all published district court opinions reaching the question of obviousness for two time periods: 1970 through 1975, and 1995 through 2000. This study finds that, consistent with the notion of a pro-patent bias under the Federal Circuit’s reign, district courts invalidated patents as obvious far less frequently in the 1990s than in the 1970s. However, this Note proposes that the explanation for this decreasing rate of obviousness is less clear than simply a pro-patent bias in the Federal Circuit.
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