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Obviousness As Fact: The Issue Of Obviousness In Patent Law Should Be A Question Of Fact Reviewed With Appropriate Deference, Ted L. Field

Fordham Intellectual Property, Media and Entertainment Law Journal

One of the most common defenses that an accused infringer raises in a patent infringement lawsuit is that the patent claims at issue are invalid for obviousness. The question of obviousness is based on several factual determinations, and the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit should sensibly review these determinations with deference to the jury’s or trial court’s findings. But these courts instead treat the ultimate determination of obviousness as a question of law to be reviewed de novo. This Article challenges the correctness of this standard of review and argues that courts …