In KSR International v. Teleflex, Inc., the Supreme Court may have sparked the question: How should obviousness be decided as a procedural matter? KSR reaffirmed the holding in Graham v. John Deere Co.—that obviousness is a legal determination decided against the background of particular facts. However, KSR moved beyond Graham and stated on a number of occasions that “the court” is to make various determinations. KSR’s language logically suggests that the jury is to answer interrogatories on specific factual questions and then the judge is to decide the obviousness issue based on those answers. How the Federal Circuit and the district courts interpret KSR to address obviousness as a procedural matter remains to be seen.
Constantine L. Trela, Jr., An Afterword To: A Panel Discussion on Obviousness in Patent Litigation: KSR International v. Teleflex, 6 J. Marshall Rev. Intell. Prop. L. 633 (2007)