Recently, the Supreme Court sent Dennison Mfg. v. Panduit Corp. back to the Court of Appeals for the Federal Circuit (CAFC). It remanded with explicit directions that the lower court consider the extent to which Rule 52(a) governs appellate review of determinations of obviousness.

It is by no means certain that obviousness determinations should be treated as questions of law. Nevertheless, there is ample evidence that courts seek to review findings of obviousness (or nonobviousness) more intensely than would be appropriate under the "clearly erroneous" or "substantial evidence" standards. If the courts are inclined to persist in more intense review of obviousness, this paper will argue that two other matters should be considered: first, whether more liberal review should be extended to all questions concerning the validity of a patent, and, second, whether such review should be conducted under the "constitutional fact" doctrine.

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IDEA: The Journal of Law and Technology

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This article was also made available as Paper 27 in the Pierce Law Faculty Scholarship Series by NELLCO (nellco.org).