tag:blogger.com,1999:blog-1949935810569534550.post7883512689738204247..comments2023-08-17T14:09:24.945+01:00Comments on PatLit: the patent litigation weblog: New Procedure for the Patents County CourtUnknownnoreply@blogger.comBlogger1125tag:blogger.com,1999:blog-1949935810569534550.post-42269355822772588642010-08-30T16:07:27.429+01:002010-08-30T16:07:27.429+01:00It is true that ignoring "secondary" evi...It is true that ignoring "secondary" evidence would reduce litigation costs, but it would also make obviousness determinations entirely unreliable. The courts have acknowledged the danger of hindsight bias for more than a century, and there is now ample empirical psychological evidence to show that this is one of the most entrenched cognitive biases. To ask a judge to rely solely on the evidence of experts, who are paid to provide a particular opinion, as to what the posita would have thought many years before, is a recipe for arbitrariness. Saving litigation costs is certainly very desirable, but it would be better to do so by excluding expert opinion evidence on obviousness, rather than by excluding objective evidence.<br /><br />(John Duffy has an interesting article -A Timing Approach to Patentability 12 Lewis & Clark L. Rev. 343 - noting that the term "secondary" originated with the 1966 decision of the USSC decision in Calmar v. Cook Chemical, the companion case to Graham v John Deere, in which the Court misunderstood the state of the prior art. Before that it was more common - and more accurate - to refer to such evidence as “objective” as contrasted with the subjective evidence of experts.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.com