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KSR at the USPTO: sea change?
May 29, 2007

Over at The Fire of Genius, Joe Miller of Lewis & Clark Law School has compiled a list of cases citing KSR. As of today, there are 2 Federal Circuit decisions (blogged about here and here), 2 district court decisions [Update (6/2) there is now a third], and a whopping 31 Board of Patent Appeals and Interferences decisions [Update (6/2) there are now 45 Board decisions] citing KSR. According to Miller:

The following passage from KSR appears to be a Board favorite:

“As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”

Mere course correction? No … sea change.

Time will tell if the tide of this "sea change" is stemmed by future Federal Circuit decisions applying KSR, or whether the change will continue.

Update (6/5): Peter Zura has analyzed the affirmance rate at the Board, and notes that examiner obviousness rejections are currently being affirmed at a 64% rate, with 36% reversed at least in part. Peter has examples of language used in the decisions in his post, which is well worth reading.

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