Obviousness is one of the most litigated elements of patent of validity, due primarily to the enormous gray area between the roles of judge and jury. While obviousness is ultimately a legal question, the courts make an effort to leave the underlying factual determinations to the jury, with mixed results. McGinley v. Franklin Sports, Inc. illustrates the problems with the Court of Appeals for the Federal Circuit’s current approach as to what role juries and district court judges should play in determining obviousness of a patent. Instead of the McGinley approach of maintaining a significant role for juries in resolving obviousness, the courts should embrace an expanded role for judges who are better equipped to handle the frequently complex decisions behind the ultimate question of obviousness. Any decisions left to the jury should be specifically laid out in the form of a special verdict to ensure that the jury is making their decisions on solid legal basis.
John Petravich, Making A Pitch for Extending A Judge's Power to Determine Obviousness: How The McGinley Court Struck Out, 3 J. Marshall Rev. Intell. Prop. L. 156 (2003)