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by Dennis Crouch

In 1981, the U.S. Court of Customs and Patent Appeals (CCPA) issued its decision in In re Keller, 642 F.2d 413 (CCPA 1981), a case that continues to shape obviousness determinations over four decades later. As the predecessor court to the Federal Circuit, the CCPA's rulings remain precedential and influential, with Keller cited 10,000+ times by the USPTO's Patent Trial and Appeal Board (PTAB) and its predecessor Board, the BPAI.

In the typical USPTO vs Applicant negotiation, Keller favors the USPTO and is often cited to uphold examiner rejections. Although the case remains influential, it does have some fundamental problems. Notably, it creates a gap -- what is not sufficient evidence -- and then fills that gap with the amorphous language of "suggestion." But this gap places the case in the good company of KSR v. Teleflex that similarly calls for flexibility in finding ways to judge obviousness.