Objective Indicia of Non-obviousness Shine as Primary Consideration in PTAB Decision, PTAB Litigation Blog
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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.
