Considering Summary Judgment After KSR

Law360, New York (August 25, 2009, 1:49 PM EDT) -- For accused infringers challenging the validity of asserted patents, anticipation is a nice defense when presented, but obviousness will do.

Indeed, obviousness offers a flexible alternative even when an anticipation defense appears available; and when pressed, obviousness often has a more profound influence on patent litigation strategy for both sides given the complexity added by secondary considerations.

Nevertheless, historically, it has been difficult to establish the obviousness, or on the other hand the nonobviousness, of a patent at the summary judgment stage.

In KSR Int’l Co....
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