August 31, 2020
Westlaw Today
By Jason E. Stach; Michelle (Yongyuan) Rice
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.
Read the full article here.
©2020 Thomson Reuters. Originally published by Westlaw Today. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
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