The U.S. Supreme Court’s decision in KSR v. Telefex changed the landscape for the law of obviousness, and patent litigators must adapt their tactics to fit that new terrain. In this article, we will discuss several of the more important considerations that savvy practitioners should take into account in the post-KSR world.
Defining the “Person of Skill in the Art” One of the most significant changes that KSR wrought was to widen the technical grasp of the hypothetical “person of ordinary skill in the art” (POSITA), the construct that will help the judge or jury decide if a patent should be invalidated for obviousness. The Court conferred on the POSITA permission to cobble together disparate references from other fields to arrive at the claimed invention, motivated by any variety of design demands, commercial trends, and market forces. This heightens the need to exercise care in defining the level of skill possessed by the POSITA.
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