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`Copyright (c) 2011 New York University Law Review
`New York University Law Review
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`December, 2011
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`New York University Law Review
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`86 N.Y.U.L. Rev. 2070
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`LENGTH: 18891 words
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`NOTE: SECONDARY CONSIDERATIONS IN NONOBVIOUSNESS ANALYSIS: THE USE OF OBJECTIVE
`INDICIA FOLLOWING KSR V. TELEFLEX
`
`NAME: Natalie A. Thomas*
`
`BIO: * Copyright © 2011 by Natalie A. Thomas. J.D., 2011, New York University School of Law; Ph.D., 2008, New
`York University; B.S., 2003, Duke University. For comments on earlier drafts, I thank Professors Herbert Schwartz,
`Katherine Strandburg, Oren Bar-Gill, and the fellows of the Lederman/Milbank Fellowship in Law and Economics. I
`would also like to thank the members of the New York University Law Review, especially Brian Lee, David Lin, Chris
`Kochevar, and Daniel Derby, for their efforts in preparing this Note for publication. Any errors are my own.
`
`HIGHLIGHT: One of the basic requirements for patenting an invention is that the invention be nonobvious.
`Following the Supreme Court's decision in Graham v. John Deere, secondary considerations - also known as objective
`indicia of nonobviousness - have been considered when determining whether an invention is nonobvious. Secondary
`considerations provide tangible evidence of the economic and motivational issues relevant to the nonobviousness of an
`invention. Types of secondary-considerations evidence include commercial success, long-felt but unmet need, and
`copying by competitors. For many years, the Federal Circuit's teaching, suggestion, or motivation test often eliminated
`the need for the court to rely on secondary considerations in the obviousness inquiry. Due to the Federal Circuit's
`stringent application of this test, the obviousness inquiry was generally resolved by examining the prior art.
`
`In 2007, the Supreme Court decided KSR v. Teleflex, which endorsed a flexible obviousness analysis and rejected
`the Federal Circuit's strict application of the teaching, suggestion, or motivation test. Following KSR, scholars predicted
`that secondary-considerations evidence would provide a critical tool for patentees seeking to demonstrate the
`nonobviousness of an invention. Inspired by that prediction, this Note evaluates how secondary-considerations evidence
`has been utilized in the first few years post-KSR. It finds that the Federal Circuit has continued to impose stringent
`relevancy requirements on the use of secondary-considerations evidence, and that it remains difficult for patentees to
`employ secondary considerations in favor of a nonobviousness conclusion. Specifically, secondary-considerations
`evidence has not been used with much success outside of pharmaceutical patent cases. More often than not, the Federal
`Circuit has summarily dismissed secondary-considerations evidence as insufficient in cases involving mechanical arts
`patents. This Note concludes by suggesting that the Federal Circuit's current practice for using secondary considerations
`should inform proposals by scholars for industry-specific tailoring of the patent system and patent law's use of
`secondary considerations, and that the Federal Circuit should continue to engage with secondary-considerations
`
`ACRUX DDS PTY LTD. et al.
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`EXHIBIT 1606
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`IPR Petition for
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`U.S. Patent No. 7,214,506
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`evidence in order to provide more guidance to lower courts during the post-KSR transition period.
`
`TEXT:
`[*2071]
`
`Introduction
`
`To qualify for a patent, an inventor must contribute a novel, useful, and significant technical advance. In other words,
`the advance must not be obvious or trivial. This requirement seems only fair. The national patent system established
`under the Constitution contemplates such a quid pro quo: In exchange for disclosing his or her invention to the public,
`an inventor is rewarded with a temporary, exclusive right. n1 The public does not benefit from the award of a patent
`right for an obvious discovery, since such an award would remove a clear and evident improvement from the public
`domain for the patent term. n2
`
`The nonobviousness requirement was first codified in the 1952 Patent Act. n3 Although the nonobviousness
`requirement was a natural addition to the Patent Act, given the patent system's goal of promoting innovation, courts and
`the Patent and Trademark Office (PTO) n4 have struggled to create a coherent procedure for determining when a
`claimed "invention" is in fact nonobvious. Indeed, it is challenging to articulate how anyone might go about determining
`if a claimed invention is nonobvious.
`
`This obviousness inquiry is significant because millions of dollars may ride on a patent examiner's judgment as to
`whether a patent should issue and on a judge or jury's determination of whether an issued patent is invalid for
`obviousness. n5 The inquiry is further complicated [*2072] by the fact that it occurs ex post and is often made by a
`factfinder n6 lacking skill in the art. n7 Technically inexperienced factfinders may allow hindsight to affect the
`obviousness inquiry. n8 What seems obvious now may not have been obvious at the time of invention.
`
`In order to guide the obviousness inquiry, the Federal Circuit - the court with appellate jurisdiction over patent
`cases n9 - adopted a teaching, suggestion, or motivation (TSM) test. A proposed invention was obvious if a teaching,
`suggestion, or motivation in the prior art pointed to the invention. The TSM test was intended to structure the
`obviousness inquiry, but instead led to instances of patents of questionable validity being upheld. n10 In the 2007 case
`KSR International v. Teleflex Inc., the Supreme Court rejected the Federal Circuit's rigid application of the TSM test
`and emphasized that the touchstones of the obviousness inquiry are flexibility and common sense. n11 In the wake of
`KSR, many predict that it will be easier to prove patents obvious. n12 Decision makers must strike a delicate balance
`between [*2073] ensuring that obvious inventions are not given patent protection and ensuring that an invention that
`was nonobvious at the time of invention is found nonobvious when later assessed by a court or the patent office.
`
`Patent case law provides for the use of secondary-considerations evidence - also referred to as objective indicia of
`nonobviousness - to aid the obviousness inquiry. n13 This evidence is considered more judicially cognizable than the
`highly technical facts frequently involved with patent litigation, as it is generally rooted in nontechnical facts about the
`invention, such as industry response or commercial success. n14 Following KSR, some scholars have predicted that
`secondary considerations will be critical to patentees' future efforts in demonstrating that their inventions are
`nonobvious. n15
`
`This Note examines the state of secondary-considerations evidence in the first few years after KSR. Part I provides
`an overview of the nonobviousness requirement of patentability, secondary considerations, and the KSR decision. Part
`II empirically examines the Federal Circuit's treatment of secondary-considerations evidence in the years after KSR and
`concludes that such evidence has not been used with much success outside of pharmaceutical patent cases. More often
`than not, courts have summarily dismissed secondary-considerations evidence as insufficient. Part III considers how
`current use of such evidence should inform proposals for altering the use of secondary considerations. In addition, this
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`Part contends that the use [*2074] of secondary-considerations evidence should be increased to guide the obviousness
`inquiry with a judicially accessible source of information about the inventive process.
`
`I
`
`The Nonobviousness Requirement, Secondary Considerations, and KSR v. Teleflex
`
`A. The Nonobviousness Requirement
`
`Although not initially included in the patent statute passed by the First Congress in 1790, n16 the nonobviousness
`requirement is now considered the ultimate threshold for patentability. n17 This requirement is codified in § 103 of the
`Patent Act:
`
`A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of
`this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject
`matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the
`art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was
`made. n18
`
`The nonobviousness requirement reserves patent protection for innovative contributions. However, if the threshold for
`patentability is too high, then researchers will be less likely to pursue socially beneficial research paths. n19 Promoting
`the optimal level of innovation requires striking the right balance in defining obviousness. Congress attempted to define
`obviousness in the context of the patent system as that which would have been obvious at the time of the invention to a
`person having ordinary skill in the art (PHOSITA), replacing the prior focus on "invention." n20
`
`Unfortunately, the statutory codification of the nonobviousness requirement for patentability does not provide a
`framework for determining [*2075] what would have been obvious to a PHOSITA at the time of invention. In Graham
`v. John Deere Co., the Supreme Court explained how the obviousness analysis under § 103 should be performed. n21
`Under Graham, courts apply a fact-based inquiry to determine whether or not the claimed subject matter of a patent is
`obvious as a matter of law. n22 First, courts must determine the scope and content of the prior art. Second, courts must
`identify the differences between the prior art and the claims at issue. Third, courts must ascertain the level of ordinary
`skill in the art. n23 Based on this three-step inquiry, courts may determine the obviousness of the invention at issue. n24
`However, Graham also provided a fourth step: the utilization of secondary considerations. The Court explained as
`follows: "Such secondary considerations as commercial success, long-felt but unsolved needs, failure of others, etc.,
`might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.
`As indicia of obviousness or nonobviousness, these inquiries may have relevancy." n25
`
`B. Secondary Considerations
`
`Rather than focusing on the specifics of the technological advance, a secondary-considerations analysis approaches
`nonobviousness through an examination of "economic and motivational ... issues." n26 Although their weight in the
`obviousness inquiry is an open question, secondary considerations are most likely termed "secondary" because they "are
`relevant through a process of inference to the ultimate technical issue of nonobviousness," not because they are of lesser
`importance. n27 Because secondary considerations do not require a detailed understanding of technology, they can
`significantly aid judicial assessments of patent validity. In addition, by providing objective [*2076] information about
`the context for the inventive process, secondary considerations may prevent hindsight bias from affecting decision
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`makers' assessments of the obviousness of an invention; n28 decision makers may be prone to such bias once the
`invention is sitting before them. n29 Following Graham's endorsement of secondary considerations, courts adopted
`secondary-considerations analysis as a critical part of the nonobviousness inquiry. n30
`
`Many secondary considerations have been proposed by scholars and cited by courts. n31 The most common include
`commercial success, [*2077] long-felt but unmet need, failure of others, and professional approval or skepticism. n32
`Generally, secondary-considerations evidence supports a finding of nonobviousness. n33 For example, failure of others
`may indicate that others attempted to find a solution but failed, suggesting that the successful inventor's discovery truly
`was nonobvious. n34 Whether all secondary considerations are equally informative, or accurately illuminate the
`nonobviousness of an invention, is debated. n35 Some scholars criticize the use of any secondary considerations,
`arguing that they are not objective enough or that they fail to combat hindsight bias. n36 Despite these critiques, the
`Supreme Court continues to endorse secondary considerations. n37 As post-KSR decision makers have more license
`than ever to consult secondary-considerations evidence, it is important to understand both how it is used in practice and
`how its use could be improved. To ground the discussion, the remainder of this Section details some commonly
`accepted secondary considerations.
`
`Commercial success is the first secondary consideration listed in Graham and also the most commonly invoked.
`n38 In theory, if a product that is expected to be commercially successful was obvious to invent, then other competitors
`likely would have already developed [*2078] it. n39 In that case, the market for subsequent entrants to achieve
`commercial success would be depleted. The potential for achieving commercial success is thought to drive inventors to
`formulate solutions to existing problems to satisfy marketplace demands. If an inventor develops a product that is
`commercially successful, presumably others recognized the product's potential for commercial success, attempted to
`develop a solution to the same problem, and failed. n40
`
`Long-felt but unmet need is a closely related and frequently invoked secondary consideration. The underlying
`rationale for accepting long-felt demand as evidence of nonobviousness partially overlaps with that for accepting
`evidence of commercial success. n41 An industry's desire for an improvement in technology provides a motivation for
`invention. n42 Because it can be assumed that a market exists for a product that satisfies a long-felt need, an inventor or
`businessperson working in the field has an incentive to develop a solution. If the demand for a solution persists over
`time, despite this potential reward, the solution may be assumed to be nonobvious. Thus, if a patentee can prove that his
`invention satisfies a long-felt need, the invention is likely nonobvious.
`
`A third secondary consideration is failure of others. n43 If others facing the same state of the art attempted to
`develop a solution to satisfy a need but failed - while the inventor succeeded - by inference, the solution employed by
`the inventor must be nonobvious. If the solution were obvious, it is assumed that others working to solve the same
`problem also would have succeeded.
`
`Professional approval is an additional secondary consideration that can illuminate the viewpoint of a PHOSITA at
`the time of invention. Contemporaneous statements about an invention may assist a factfinder in determining whether
`those with ordinary skill in the art would have found the invention obvious. If experts in the field contemporaneously
`hailed the invention as revolutionary or as answering a long-felt need, a hypothetical PHOSITA would probably have
`found [*2079] the invention nonobvious. n44 Similarly, if competitors or experts in the field had expressed surprise or
`doubt as to whether the invention was possible, that skepticism may be construed as evidence that the invention was
`nonobvious. n45
`
`Finally, unexpected results is a frequently invoked secondary consideration. n46 Evidence of unexpected results
`may provide a reliable indicator of whether an invention is nonobvious because the probable or anticipated result of an
`experiment is likely to be embodied in an obvious invention. n47 The courts and the PTO are more inclined to accept
`secondary-considerations evidence of unexpected results in "the less predictable fields, such as chemistry, where minor
`changes in a product or process may yield substantially different results." n48 Finally, relying on a demonstration of
`unexpected results is consistent with the innovation policy viewpoint that "low probability experimentation should
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`generally be rewarded." n49
`
`While secondary considerations may offer insights for determining the obviousness of an invention, the evidence
`must be relevant to the analysis. For example, commercial success might be attributable to appealing packaging or
`advertising and not to the invention itself. Alternatively, a patentee might have developed the solution to a long-felt but
`unmet need due to innovations in complementary technology that changed the state of the art. In such a scenario, the
`change in technology might make what was previously nonobvious to unsuccessful would-be inventors obvious to
`inventors working in the context of a different state of the art. n50 Similarly, praise by competitors might have been
`made in order to gain investors' interest in the competitors' work in the same field. Such statements might be
`self-serving and thus would need to be scrutinized for context and relevancy. To [*2080] ensure that secondary
`considerations are truly informative about the invention at issue, a nexus between the secondary consideration and the
`invention must be established before the evidence can be considered in the obviousness analysis.
`
`C. KSR v. Teleflex: Increased Flexibility in Assessing Obviousness
`
`In 2007, the Supreme Court issued its opinion in KSR International Co. v. Teleflex Inc. n51 The decision was highly
`anticipated by the patent law community because the Supreme Court had not addressed the obviousness inquiry in over
`thirty years. n52 During that time, the Federal Circuit had developed its own tools for executing the obviousness
`analysis under Graham. KSR provided a chance for the Supreme Court to signal its views on the evolution of the
`doctrine and to recalibrate the inquiry if necessary.
`
`In an effort to avoid the effects of hindsight bias, the Federal Circuit developed a teaching, suggestion, or
`motivation test. n53 To find an invention obvious, the TSM test required the identification of a specific teaching,
`suggestion, or motivation in the prior art to arrive at the invention at issue. For example, to find a patent invalid, a
`factfinder would have to point to a suggestion in the prior art, perhaps in a published trade article, that component A of
`an invention might be improved by combining it with component B. If the challenged patent is composed of A and B,
`then the suggestion in the prior art could be cited to justify finding the patent obvious and invalid. If there was no
`indication in the prior art that A would benefit from being combined with B, though, or if there was no documented
`motivation n54 [*2081] for the decision to add B to other components, then the patent could be upheld as valid.
`
`The TSM test was developed in order to reduce the likelihood that courts would look back in time and find an
`invention to be obvious that was in actuality nonobvious at the time of invention. Unfortunately, the Federal Circuit
`started applying the TSM test in a mechanical fashion, strictly requiring a published article or patent to provide the
`necessary TSM before a patent could be invalidated for obviousness. n55 As a result, it became harder to prove a patent
`obvious because explicit teachings, suggestions, or motivations are not always easy to identify, particularly in fields
`where there is "little discussion of obvious techniques or combinations" or where "market demand, rather than scientific
`literature, ... drives design trends." n56 This stringent application of the TSM test led to patents of questionable validity
`being upheld. n57 In KSR, the Court clarified that the Federal Circuit and lower courts should not engage in a rigid
`obviousness inquiry, rejecting a strict application of the TSM test. n58 Instead, the Supreme Court emphasized that the
`obviousness inquiry endorsed by its case law is expansive and flexible. n59
`
`The Court acknowledged that the approach condoned in Graham n60 was intended to help provide uniformity and
`certainty to the obviousness inquiry. But it distinguished these goals from the rigidity introduced by the Federal Circuit
`by pointing out that Graham was intended to reaffirm a functional approach established by pre-Graham case law. n61
`To emphasize the difference, the Court noted that Graham established a broad framework for courts and particularly
`invited them to consider secondary considerations where [*2082] appropriate. n62 KSR establishes that the
`obviousness inquiry should be more flexible and allow "factfinders recourse to common sense." n63 The factfinder is
`instructed to take into account the inferences and creative steps that a PHOSITA of ordinary creativity would undertake,
`as well as relevant secondary considerations, in reaching a conclusion as to obviousness. n64
`
`Under KSR, because factfinders can engage in a wider, flexible inquiry and reach conclusions of obviousness
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`without having to point to specific pieces of prior art to demonstrate a TSM, it should be easier to reach conclusions of
`obviousness than it was prior to the decision. n65 Against this new background, secondary considerations might provide
`an appealing means for patentees to present evidence in support of nonobviousness to the factfinder, who now has much
`more flexibility in the overall inquiry. Professors Dan Burk and Mark Lemley have predicted that after KSR, litigants
`arguing for the nonobviousness of their patented inventions will increasingly rely on secondary considerations. n66
`Similarly, Lemley and Daralyn Durie believe that "secondary considerations represent patentees' best hope of
`demonstrating nonobviousness in the post-KSR world," n67 because such evidence is generally pro-patentability,
`accessible to the decision maker, and a guard against hindsight bias. n68
`
`Judges should similarly find the use of secondary-considerations evidence more helpful in the wake of KSR.
`Decision makers engaging in KSR's flexible inquiry may validly turn to the economic and motivational insights of
`secondary-considerations evidence to provide guidance as to whether their common-sense intuitions about obviousness
`are, in fact, correct. For this reason, it has been suggested that secondary considerations are necessary "objective
`checks" to cabin KSR's flexible approach and promote consistency between decisions. n69
`
`[*2083]
`
`II
`
`Secondary Considerations Before and After KSR
`
`As discussed in Part I.C, KSR's endorsement of a common-sense, flexible analysis is generally believed to have
`produced a heightened threshold for proving nonobviousness, thus making it harder to obtain and hold onto a patent and
`easier for potential infringers and competitors to argue that an issued patent is invalid due to obviousness. In this Part, I
`evaluate the hypothesis that, in response to this change in the obviousness inquiry, litigants and courts have increased
`their reliance on secondary-considerations evidence. I do this by surveying the Federal Circuit's use of
`secondary-considerations evidence in the years immediately following KSR.
`
`A. Secondary Considerations Before KSR
`
`Although my inquiry focuses on the utilization and treatment of secondary considerations following KSR, it is useful
`first to examine how the Federal Circuit employed secondary-considerations evidence in the years between Graham and
`KSR. The pre-KSR use of secondary considerations was characterized by strong endorsements of the use of such
`evidence, n70 but little actual reliance on such evidence to reach conclusions as to obviousness. n71
`
`Shortly after its creation in 1982, the Federal Circuit endorsed the view that secondary-considerations evidence may
`provide courts with the most probative and insightful evidence of obviousness or nonobviousness in the record. n72 In
`one case, the court found no reversible error in a district court's conclusion that a patent was not invalid, where the
`district court gave weight to evidence of the commercial success, initial skepticism, and industry praise of an invention.
`n73 Similarly, the Federal Circuit endorsed a district court decision finding that an invention composed entirely of
`pieces of prior art was nonetheless nonobvious, based largely on the fact that the patented invention fulfilled a long-felt
`need, achieved commercial success, and was the subject [*2084] of skepticism on the part of experts, which the court
`called "strong evidence of nonobviousness." n74
`
`Despite the endorsement of such evidence, in the years prior to KSR the Federal Circuit did not give much weight
`to secondary-considerations evidence that ran counter to an obviousness conclusion based on the prior art and skill level
`of the PHOSITA. In his study of Federal Circuit decisions on nonobviousness between 2002 and 2005, Professor Chris
`Cotropia observed that secondary considerations played a "miniscule role" in nonobviousness decisions. n75 In a survey
`of district court and Federal Circuit opinions between 2004 and 2005, Professor Gregory Mandel discovered that
`secondary-considerations evidence was found sufficient to rebut a prima facie case of obviousness in only one case out
`of ninety-three. n76 Additionally, the Federal Circuit provided little guidance to district courts regarding how much
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`weight to accord particular secondary considerations. n77 [*2085] This lack of guidance may explain the relatively
`limited role that secondary considerations appear to have played in the years immediately prior to KSR. Because the
`TSM test generally made it easier to uphold patent validity and most secondary considerations are used to help prove
`nonobviousness, litigants may have felt less pressure to introduce secondary-considerations evidence in order to prove
`nonobviousness. Similarly, since the TSM test already provided a structured inquiry designed to avoid hindsight bias,
`decision makers might not have felt the need to take into account or explicitly address secondary-considerations
`evidence, even when litigants presented such evidence. In sum, although the Federal Circuit required the inclusion of
`secondary considerations in the obviousness inquiry prior to KSR, the court accorded such evidence varying weight,
`only occasionally finding secondary-considerations evidence sufficient to support a finding of nonobviousness.
`
`B. A Survey of the Use of Secondary Considerations Under the Revised Obviousness Inquiry
`
`In order to characterize the initial role that secondary considerations have played post-KSR, I examined thirty-one
`precedential decisions issued by the Federal Circuit where the nonobviousness of a patent or patent application was
`contested and secondary-considerations evidence was addressed. n78 Secondary considerations were virtually never
`sufficient to counter evidence found to be indicative of obviousness under the first three steps of the Graham inquiry. In
`eight of the cases, the court reversed a lower court finding of nonobviousness, despite the presence of
`secondary-considerations evidence in support of nonobviousness. n79 These decisions acknowledged [*2086] the
`presence of secondary-considerations evidence in favor of a finding of nonobviousness, but either found such evidence
`insufficient to outweigh the evidence in favor of a finding of obviousness or dismissed the evidence for lacking a
`sufficient nexus to the invention. In nine other cases, the Federal Circuit affirmed a district court (or PTO Board)
`finding of obviousness, noting that the secondary-considerations evidence was insufficient to outweigh the evidence
`of obviousness. n80 In more than half of these cases, secondary-considerations evidence was dismissed as insufficient
`or too remote to have any real weight in the obviousness analysis. While secondary-considerations evidence was
`predicted to be important to patentees and patent applicants following KSR, n81 this prediction has not been reflected in
`practice. In the cases examined, the court explicitly reversed a finding of obviousness based on secondary
`considerations only once, though it did vacate and remand two decisions that found a patent obvious because the district
`court failed to explicitly examine secondary-considerations evidence. n82 These observations somewhat diverge from
`an early assessment of the use of secondary considerations [*2087] at the district court level post-KSR. In 2008,
`Kenneth Adamo, Ryan McCrum, and Susan Gerber concluded that district courts were giving increased attention to
`secondary-considerations evidence. n83 However, their study regarded district court cases that rejected
`secondary-considerations evidence (based on either an insufficient nexus between the evidence and the invention, or a
`strong prima facie case of obviousness) as giving attention to secondary considerations. n84 While technically giving
`attention to secondary considerations, these decisions appeared to discount their role. The study cited one case where a
`district court found a patent nonobvious in part because of secondary-considerations evidence, but that decision was
`overturned on appeal by the Federal Circuit. n85 Thus, while illuminating district court practice, this study does not
`indicate a paradigm shift in the use of secondary considerations.
`
`The court affirmed a finding of nonobviousness in eleven of the cases involving secondary considerations. Seven of
`these cases dealt with pharmaceutical patents, n86 two dealt with medical devices, n87 and [*2088] two dealt with
`computers or electronics. n88 In the cases where nonobviousness was affirmed, secondary considerations were found to
`support a prima facie finding of nonobviousness. n89 The court devoted the most attention to secondary considerations
`in these cases, n90 most likely because they provided additional evidence that the court could point to in order to
`demonstrate to the public - and reassure itself - that the conclusion it had reached on obviousness was the correct one.
`The pharmaceutical patent cases did not involve secondary-considerations evidence based solely on evidence of
`commercial success. In all of the pharmaceutical cases where the nonobviousness of the invention was upheld on
`appeal, the secondary-considerations evidence included evidence of unexpected results combined with commercial
`success, long-felt but unmet need, or copying. n91 One of the medical device cases, DePuy Spine, Inc. v. Medtronic,
`involved a spinal implant screw, which both the district court and the Federal Circuit found to be a nonobvious
`invention, largely because the prior art taught away from the combination that the invention embodied. n92 The Federal
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`Circuit, agreeing with the district court, also noted that both the failure of others and copying supported the finding of
`nonobviousness. n93
`
`In the other medical device case, Pressure Products Medical Supplies, Inc. v. Greatbatch Ltd., the Federal Circuit
`found that substantial evidence supported the jury's finding that the patent was not invalid for obviousness, and that the
`district court did not err in denying the patent challenger's motion for judgment as a matter of [*2089] law on
`obviousness. n94 The court noted that secondary-considerations evidence, including commercial success, long-felt but
`unmet need, skepticism of experts, and unexpected results, also supported a finding of nonobviousness and served as
`independent, not just cumulative, evidence of nonobviousness. n95
`
`Power-One, Inc. v. Artesyn Technologies, Inc. also involved the affirmance of a district court's denial of a motion
`for judgment as a matter of law on obviousness. n96 The court found that sufficient evidence supported the lower
`court's finding that the scope of the prior art was limited and that there were differences between the invention disclosed
`and the prior art. n97 The court also noted that secondary-considerations evidence supported the jury's conclusion that
`the patent was not invalid. Specifically, the court noted that there was evidence that the patent challenger touted its own
`infringing product as an "advancement in the industry," as well as evidence of industry praise and copying. n98
`
`In the software case, i4i Ltd. Partnership v. Microsoft Corp., the Federal Circuit upheld a jury finding of
`nonobviousness for a software patent on an improved method of editing documents containing markup language. n99
`The review on appeal was deferential because the court was reviewing jury findings of obviousness where no
`pr