Over the tenure of the Court of Appeals for the Federal Circuit, secondary considerations have become increasingly important in the analysis of nonobviousness. However, a close examination of the analytical framework behind these factors tells a cautionary tale. Courts often interpret evidentiary details of disputable import to indicate multiple secondary factors. In particular, the courts’ handling of the secondary consideration of long-felt need has allowed courts to spin mountains from evidentiary molehills. Analysis of the opinions in In re Cyclobenzaprine will demonstrate this proclivity. This Note proposes a solution: a thorough analytical method for each factor, to ensure the independence, and persuasiveness, of each. A framework for careful analysis of the secondary consideration of a long-felt need is provided.
C. Dylan Turner,
In Cyclobenzaprine, an Objective Failure to Reach a Long-Felt Need in Secondary Considerations Jurisprudence,
Nw. J. Tech. & Intell. Prop.