- SSRN Id:
- patent law; antitrust law; secondary considerations; law and economics
Courts have developed nine non-technical secondary considerations to help juries and judges in patent litigation decide whether a patent meets the crucial statutory requirement of being non-obvious. This article proposes a new, tenth secondary consideration: increased market power. If a patent measurably increases its holders’ market power, that should weigh in favor of finding the patent non-obvious. This new secondary consideration incorporates the predictive benefits of several existing secondary considerations, while increasing the accuracy and availability of evidence for fact-finders to determine whether a patent is non-obvious.