Was the Federal Circuit Feeling Guilty Over KSR? Study Suggests They Were

District court clerk Ali Mojibi recently conducted an empirical study on the effect of the Supreme Court’s decision in KSR v. Teleflex:

 The basic approach of the study is straightforward. The author surveyed a large number of cases decided by the Federal Circuit and certain District Courts before and after the Supreme Court decided KSR v. Teleflex in order to evaluate the actual effect and implications of KSR on different aspect of patent law. Based on how cases were decided in three distinct periods—before the Supreme Court granted cert to KSR, after the Supreme Court decided KSR, and the period in between—the article tests if and how KSR changed the landscape of the patent obviousness doctrine.

What did Mojibi find?  Well, for starters, KSR had a significant effect on obviousness determinations at the Federal Circuit.  Before SCOTUS granted cert, the Federal Circuitfound patents obvious 40% of the time.  That number jumped to 57.4% after KSR. Moreover, while patents were found non-obvious 34.3% of the time before cert was granted, only 29.6% were held non-obvious after KSR.

In district courts, the effect of KSR was staggering - before cert, district courts found obviousness only 6.3% of the time.  That number jumped to 40% (an almost sevenfold increase) after KSR was decided.

Mojibi digs further to look at the "in between" phase when the KSR was pending before the SCOTUS.  Here, Mojibi finds an interesting statistic: during the period when KSR was pending, the Federal Circuit found patents obvious almost 70% of the time and non-obvious 26% of the time. This means that the highest percentage of obviousness findings in the Federal Circuit occurred after the Supreme Court granted cert, but before KSR was decided. Also, the lowest rate of non-obviousness findings happened during this interim period.  Moreover, during this same time, the Federal Circuit affirmed every finding of obviousness appealed the lower courts, and became three times more likely to reverse a lower court’s ruling of nonobviousness.

Notes Mojibi:

This result is quite unexpected because granting cert does not change the state of the law at all, and the stark contrast in percentage of patents being held invalid before and after grant of cert cannot be explained by any substantive change in the law. Rather, the data seems to indicate that the Federal Circuit perceived the Supreme Court’s decision to hear KSR as a nod of approval to the critics of the Federal Circuit, which alleged that the appeals court was too pro-patent.  Hence, it seems possible that as soon as the Supreme Court announced its decision to grant cert, the Federal Circuit reacted by raising the obviousness bar to find more patents invalid.

Read "An Empirical Study of the Effect of KSR v. Teleflex on the Federal Circuit’s Patent Validity Jurisprudence" (link)