The KSR v. Teleflex decision marked the Supreme Court's first significant return to the issue of "obviousness" in over four decades. While KSR may make it easier to invalidate a patent by a finding of obviousness, it is unclear how lower courts will implement the decision. The resulting uncertainty presents an opportunity to rethink the jury's role in an obviousness determination. This note discusses current model jury instructions and jury verdict forms, the jury's continuing role in obviousness decisions, and how new jury instructions that conform to KSR's standards can aid lower courts in addressing a jury's use of hindsight.
KSR Fallout: Questions of Law Based on Findings of Fact and the Continuing Problem of Hindsight Bias,
1 Hastings Sci & Tech. L. J. 243
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