Patent Law | Expert Legal Commentary
May 16, 2008
Agrizap and Ortho-McNeil: Two Sides of Post-KSR Obviousness
Ortho-McNeil Pharmaceutical, Inc. v. Mylan Laboratories, Inc., et al.
By
John R. Carr
In KSR v. Teleflex, 550 U.S. ____, 127 S. Ct. 1727 (2007), the U.S. Supreme Court broadened the applicable test in determining whether an invention is “obvious.” As predicted by patent law pundits, the KSR decision was followed by a number of cases in which infringers defended their actions – and won – by having the patent in question declared invalid for obviousness under this new standard. The Court of Appeals for the Federal Circuit (the CAFC) recently heard and decided two separate cases that addressed the issue of obviousness post-KSR. These cases shed further light on the new standard for determining obviousness. While the results are quite different, the lessons for practitioners are, ultimately, the same.
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