The KSR Supreme Court decision on obviousness is now more that five years old (decision rendered April 30, 2007). Fears existed that after KSR few patents could be ultimately rendered to be “non-obvious.” However, the Federal Circuit recently issued an opinion that provided one more data point that patents can still be “non-obvious.” Indeed, the court said the case represents a “poster child for impermissable hindsight reasoning.” See Otsuka Pharmaceutical Co., Ltd. v. Sandoz, Inc., (Fed. Cir. 2012), decided May 7, 2012.
Obviousness analysis can take many forms. The Otsuka decision takes on one of those forms, the so-called “lead compound” analytical framework.
An important point is that the analysis applies outside the pharmaceutical facts of the case.