Law Students

Hindsight Bias in Obviousness Determinations

By Rick

Dennis Crouch at Patently-O recently posted about Hindsight Bias and discussed an interesting experiment he performed in a seminar demonstrating the inability of humans to remove bias in analyzing the obviousness of a patent.  The problem with this is that once you are given the solution the steps to carry out the solution always seem trivial, but the job of the examiner is to use his skill in the art and only apply knowledge from the relevant time period to determine whether one skilled in the art would have seen the solution as obvious or not.  Seems to me the test should be some sort of balance between fairly easily discoverable or ascertainable characteristics relevant to the art in the time needed which the examiner/court could use to make the required determination about obviousness.  Instead of just applying the “hypothetical person with skill in the art” and then using the Graham Factors.  Will be very intersting to hear the arguments for KSR v. Teleflex and read the courts opinion.

Full post as published by Jack of All Trades on November 14, 2006 (boomark / email).