Courts have developed several non-technical “secondary considerations” to help judges and juries in patent litigation decide whether a patent meets the crucial statutory requirement that a patent be non-obvious. This Article proposes a tenth secondary consideration to help judges and juries: increased market power. If a patent measurably increases its holders’ market power in the market into which it sells products or services, then that increase should weigh in favor of finding the patent non-obvious. Using increased market power incorporates the predictive benefits of several other secondary considerations, while often increasing the accuracy and availability of evidence. It would provide another tool in the patent law toolbox to help fact-finders accurately determine whether a patent is obvious or non-obvious. This new secondary consideration would likely not lead to an increased rate of finding patents valid. Very few patents convey any market power at all, despite patents being monopolies on a particular product or process. Scholars, judges, and the federal agencies tasked with enforcing the antitrust laws all recognize this reality. But this new secondary consideration will lead to an increased rate of courts correctly upholding truly non-obvious patents.
Blair-Stanek, Andrew, “Increased Market Power as a New Secondary Consideration in Patent Law A Review of Recent Decisions of the United States Court of Appeals for the Federal Circuit.” American University Law Review 58, no. 4 (February 2009): 707-746.