Objective Indicia of Non-obviousness Shine as Primary Consideration in PTAB Decision, PTAB Litigation Blog
While touted by the Federal circuit as “a powerful tool for courts faced with the difficult task of avoiding subconscious reliance on hindsight,” objective indicia of non-obviousness have, to date at the PTAB, been little more than a secondary consideration. Through over four years and thousands of PTAB proceedings, the number of times secondary considerations have saved a patent can be counted on one hand. See, e.g., Omron Oilfield & Marine Inc. v. MD/TOTCO, IPR2013-00265, Institution Decision (PTAB Oct. 31, 2013); Intri-Plex Technologies Inc. v. Saint-Gobain Performance Plastics Rencol Ltd., IPR2014-00309, Final Written Decision (PTAB March 23, 2014). But, in World Bottling Cap, LLC v. Crown Packaging Technology, Inc.¸IPR2015-01651, the PTAB found that objective indicia of non-obviousness made the difference in a close obviousness case.
Read the full article at ptablitigationblog.com.