An 'Obvious' Time to Take Secondary Considerations Seriously

Secondary considerations are by no means “secondary in importance.” Rather, in the right circumstances, secondary considerations can be the “most probative and cogent evidence” of nonobviousness and make the difference between winning and losing.

In a recent line of cases, the Federal Circuit stressed the importance of secondary considerations and elaborated on the requirements for them to be effective in demonstrating nonobviousness.

The Patent Trial and Appeal Board (“the Board”) has also designated a number of decisions on secondary considerations as precedential or informative. Now is the time to rethink the importance of secondary considerations — perhaps more aptly referred to as “objective evidence” or “objective indicia” of nonobviousness — in defending against obviousness as a patent owner, or refuting them as a patent challenger.

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