New: Not All Patents Are Created Equal: Bias Against Predictable Arts Patents in the Post-KSR Landscape
Author: David Tseng
Abstract: KSR v. Teleflex injected a high level of subjectivity in evaluating patent invalidity by obviousness. This paper discusses how the holding of KSR, subsequent USPTO guidelines, and Federal Circuit decisions have established a bias against predictable art patents. Moreover, this paper proposes a revitalization of secondary considerations and the prohibition against the use of hindsight bias to offset this bias.