Companies accused of patent infringement often ask “How did they get a patent on that? It is so obvious.” The reality is that most modern patents are nothing more than a combination of known elements assembled in a novel—or not so novel—manner. The challenge for accused infringers is how to prove that the claimed combination of elements was known to those skilled in the art. The “smoking gun” in such cases is a single prior reference that discloses the exact same combination, but such smoking guns are all too rare. Accused infringers are thus often forced to argue that the patented combination would have been obvious to others using only the ordinary skill of those in the field. Practitioners generally agree that since the U.S. Supreme Court’s ruling in KSR v. Teleflex (2007), proving obviousness has become easier, because KSR eliminated any rigid formula for proving obviousness and placed renewed emphasis on the problems being solved and the use of plain common sense. KSR’s looser framework, however, can also create a trap for the unwary who fail to gather the proof needed to satisfy even the looser standards set forth in KSR. Awareness of these traps, and how to avoid them, is essential to the successful litigant.
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