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For the first time in thirty years, the Supreme Court will consider the core patent requirement that an invention be non-obvious. At the heart of the case lies the challenge of how to insulate non-obvious decisions from the distortion of the hindsight bias. This Article reports the latest empirical studies in a line of hindsight research, which present experimental data bearing directly on the issue before the Court: how individuals make non-obvious decisions under existing Supreme Court and Federal Circuit precedent. The study results indicate that the Federal Circuit's suggestion, teaching, or motivation requirement, the precedent challenged before the Supreme Court in KSR v. Teleflex, does not produce erroneous non-obvious outcomes. This result contradicts the claims of the petitioners in KSR and other critics of the suggestion requirement. On the other hand, the results do not demonstrate that the suggestion test ameliorates the hindsight bias in the manner usually claimed by its supporters. An additional study indicates that the Supreme Court's Graham framework does not resolve the hindsight problem either. Given the substantial and confirmed prejudicial effect of the hindsight bias, the Article concludes that the suggestion test should be retained for several reasons: it does not appear to cause the harms hypothesized by its critics, it potentially reduces the hindsight bias for complex technology inventions, and the problem the test confronts (erroneous decisions that an invention is obvious in hindsight) is known and significant while the problem the test is alleged to create (over-compensation for the hindsight bias) is unconfirmed and conjectural. The Article concludes with a recommendation for bifurcating the non-obvious decision at the Patent and Trademark Office. Combined with an earlier proposal f or jury trials, these recommendations present the only known means for eliminating the hindsight effect and producing patent decisions that comport with the Patent Act and Supreme Court precedent. TABLE OF CONTENTS INTRODUCTION I. THE NON-OBVIOUS HINDSIGHT BIAS II. SUGGESTION TEST AND GRAHAM FRAMEWORK EXPERIMENTAL STUDY A. METHOD B. RESULTS 1. Non-Obvious 2. Federal Circuit Suggestion Instructions 3. Supreme Court Graham Instructions 4. Confidence in Non-Obvious Judgment 5. Likelihood of Invention C. DISCUSSION III. FROM EXPERIMENTAL STUDY TO REAL WORLD IMPLICATIONS IV. CONSEQUENCES OF THE STUDY FOR THE SUPREME COURT IN KSR v. TELEFLEX A. THE FEDERAL CIRCUIT'S SUGGESTION TEST B. IMPLICATIONS OF THE STUDY FOR THE SUGGESTION REQUIREMENT C. ACHIEVING ACCURATE NON-OBVIOUS DECISIONS CONCLUSION APPENDIX INTRODUCTION Patent law faces a critical quandary. The core requirement for obtaining a patent is that the invention was not obvious at the time it was invented. Only significant technological advances merit award of a patent. Determining whether an invention was non-obvious in the past, however, raises the daunting specter of hindsight. Once we know that the invention was achieved--and even more prejudicially, how it was achieved--the invention inevitably appears to have been more obvious than it actually was. The Supreme Court is currently considering this problem in KSR v. Teleflex. (1) The hindsight effect is familiar to all--consider the widespread adages "hindsight is 20/20" or "Monday morning quarterback." These sayings are based on a now well-proven fact: once outcome information is known, people are cognitively incapable of preventing that information from influencing their understanding of past events. As a result, individuals consistently (and unconsciously) exaggerate what could have been anticipated in foresight and not only tend to view what occurred as having been inevitable, but also as having appeared relatively inevitable beforehand. …

Patently Non-Obvious Ii: Experimental Study on the Hindsight Issue Before the Supreme Court in Ksr V. Teleflex