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Patently Non-Obvious

Patently Non-Obvious

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Patently Non-Obvious

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  1. Patently Non-Obvious KSR v. Teleflex and Empirical Studies on the Hindsight Bias in Patent Law Gregory N. Mandel Associate Dean for Research & Scholarship, Professor of Law © 2007 Gregory N. Mandel

  2. Patent Act § 103:Non-Obvious Subject Matter A patent may not be obtained . . . if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art . . .

  3. Foresight v. Hindsight

  4. Foresight v. Hindsight

  5. Foresight v. Hindsight * p < .001

  6. Debiasing Attempts • Jury Instruction • Secondary Consideration Evidence • Supreme Court Graham Framework • Federal Circuit Suggestion Test

  7. Graham & Suggestion Effect(hindsight condition, obvious conclusion) * p not significant versus “no instruction” condition

  8. Graham & Suggestion Effect(hindsight condition, obvious conclusion) * p not significant versus “no instruction” condition

  9. Real World Implications • Increasing motivation, incentives, effort, reward, time each do not resolve the hindsight bias • Greater information and detail do not mitigate the hindsight bias • Modest familiarity improvement (< 10%); may aid PTO, not judges/others • Group decision-making (jury) does not mitigate hindsight bias

  10. Hindsight Bias & Suggestion Test Optimal hindsight bias solution: Bifurcation If bifurcation is not available, suggestion test should be retained because . . . • Only potential fix identified • Reduces more errors than it causes • Does not lower the non-obvious standard • Provides useful analytical framework

  11. Hindsight Bias throughout Patent Law • Enablement • Claim Construction • Doctrine of Equivalents • On-Sale Bar