May 4, 2017

“10 Years Of KSR: 4 Key Statistical Takeaways,” Law360, May 4, 2017

By Matthew L. Cutler, Principal

By Ron Osborne of Intellectual Property Insurance Services Corporation, Matthew Cutler of Harness Dickey & Pierce PLC and Gregory Upchurch of LegalMetric

Sunday marked 10 years since the U.S. Supreme Court issued its ruling in KSR International Co. v.Teleflex Inc., rejecting the test that was used by the U.S. Patent and Trademark Office, patent attorneys and district courts for determining if a patent is too obvious. This weeklong Law360 Expert Analysis series explores the decision’s effect on obviousness analysis and the patent landscape.


Happy birthday, KSR! Given the onslaught of patent legislation, U.S. Patent and Trademark Office regulations, and en banc Federal Circuit and U.S. Supreme Court decisions, it is easy to forget that one of the earliest and most well-known cases in this unprecedented era of patent “reform” turned 10 years old on April 30, 2017. The past decade has been one heck of a patent ride.

To commemorate the big birthday, we enlisted the databases and expertise of Greg Upchurch, director of research at LegalMetric, to measure, analyze and otherwise inform regarding the impact KSR has had on patent litigation. While some of the trends we uncovered may have been expected, there were significant surprises in the data. Below are four key statistical takeaways regarding the significance of KSR on patent litigation in the past 10 years and how that impact may be waning as KSR approaches its teenage years.

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