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Admitting Evidence of Commercial Success After KSR

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As part of the “broad inquiry” into obviousness mandated by the Supreme Court in KSR v. Teleflex, commentators have speculated over the continuing viability of so-called “secondary considerations.” Some commentators predict that such considerations are now “elevated in importance.” Others question the rubric’s continuing relevance, specifically pointing to the Federal Circuit’s treatment of a case out of this district.

Given these doctrinal fluctuations, discerning the best proofs for an invalidity case may now be more difficult. One recent decision by Delaware district judge Sue L. Robinson, however, sheds light on one route to proving the secondary consideration of commercial success: news articles.

In its December 4th order, the Court held that a defendant’s praise for the accused products, embodied in news articles, can be admitted as admissions of a party so long as the statements “relat[e] to the commercial success of the accused products.” Other articles that simply mention the accused product, on the other hand, are inadmissible: it is the party’s own statement of praise, not the existence of public information about the products, that controls the evidentiary inquiry.

Callaway Golf Co. v. Acushnet Co., C.A. No. 06-091-SLR (D. Del. Dec. 4, 2007) (Robinson, J.).

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