By analyzing over 600 patents challenged in inter partes reviews (IPRs), this Note tests the hypothesis that patents examined before the Supreme Court’s 2007 KSR decision should survive obviousness challenges less often than patents examined after KSR. The data shows that post-KSR patents are denied institution at higher rates than pre-KSR patents under obviousness grounds, thus providing evidence supporting the hypothesis.
The data also shows that in IPR final written decisions, the difference between the survival rates of pre-KSR and post-KSR patents based on obviousness is negligible, thus confirming predictable IPR patterns. This Note provides a unique perspective on invalidity patterns in IPRs by combining both practical and academic insight in one of the most widely discussed areas of patent law. Practitioners can rely on this study to better advise both petitioners and patent owners in IPRs. From an academic perspective, this Note provides empirical evidence supporting the argument that KSR was a critical juncture in patent law and had a measurable impact in the field.