14 months of KSR World
Are you curious to know the bottom-line outcomes in the 17 published post-KSR Federal Circuit cases that conduct a nonobviousness inquiry? The below picture sorts the results in a crude, but (I think) interesting way. [ Note (with a hat tip to my anonymous commenter: This count doesn't include summary affirmances. One can't know what issues were considered in such a case without reading the appeal briefs in the case, and I haven't done that. ]
Joe, what were the two cases where the claim was rejected (presumably meaning invalidated?) by the lower court, and reversed by the CAFC?
Comment by PA — June 16, 2008 @ 10:57 am
One is an outright reversal of a PTO rejection. That’s In re Sullivan, 498 F.3d 1345 (Fed. Cir. 2007). The other is a vacatur and remand to the PTO for reconsideration in light of the different approach the Federal Circuit had taken to the patentable subject matter question. That’s In re Comiskey, 499 F.3d 1365 (Fed. Cir. 2007).
Comment by Joe — June 16, 2008 @ 11:15 am
Joe – Thanks for the update.
My original recollection is therefore confirmed: the CAFC has yet to reverse a District Court’s opinion that a claim is obvious. Not sure how significant this fact is, but there you are…
Comment by PA — June 16, 2008 @ 12:08 pm
Does this account for summary affirmances?
Comment by anonymous — July 4, 2008 @ 6:17 am
Anon,
It does not. And thank you for asking – and underscoring that I should have stated that in my narrative above. I’ve changed it, accordingly.
Best,
Joe
Comment by Joe — July 4, 2008 @ 6:32 am