CAFC Obviousness Decision Trends and KSR

By Jason Rantanen

Following up on Dennis's post earlier this morning, below I've provided a few charts showing the Federal Circuit's practice of citing KSR in its obviousness opinions.  The data comes from a study of the court's post-KSR obviousness jurisprudence that I'm currently writing up; as a result, it only runs through April 30, 2012.  The pattern is noticibly different from that of the BPAI/PTAB data that Dennis provided, both for all opinions involving obviousness and for just those arising from the PTO. 

The first chart shows the rate at which the Federal Circuit cited KSR at least once in an opinion addressing obviousness.  The rate at which the court cited KSR actually climbed a bit in 2011. 

CAFC KSR Citations by Year

The next chart is a moving (lagged) average, which means that each point represents the average rate that the Federal Circuit cited KSR over the 20 preceding opinions.  For example, the first point represents the average rate at which the Federal Circuit KSR in opinions 1-20 following KSR, the second point opinions 2-21, etc. The first data point thus corresponds with the Federal Circuit's 20th opinion on obviousness after KSR while the last data points corresponds with the Federal Circuit's 155th opinion after KSR.

CAFC Citations of KSR lagged
The last chart follows the same format as the first chart, limited to appeals arising from the PTO.

CAFC citations of KSR by Year - PTO only

2 thoughts on “CAFC Obviousness Decision Trends and KSR

  1. Hey,
    Thanks! Great post you have written on “CAFC Obviousness Decision Trends and KSR”.Really I can say that your post is very informative, I’ll come across your blog again when you will update it with new.

    Nelson
    link to jrlaw.org

  2. It would be interesting to see this data for individual CAFC judges. At least one Judge was undoubtedly unhappy with the Sup. Ct. repeately noting in KSR that the 103 person of ordinary skill in the art has common sense, and thus would look around for suitable available parts or connection points for a claimed combination without having to be expressly told in writing from a reference of a teaching or suggestion for that combination.

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