Supporting Patentability With Commercial Success

Law360, New York (September 24, 2009, 12:50 PM EDT) -- There is little question that KSR Int’l Co. v. Teleflex Inc.[1] raised the bar for establishing the nonobviousness of an invention as required for patentability under 35 U.S.C. § 103.

It is well known that the Supreme Court in KSR rejected a rigid application of the Federal Circuit’s TSM test[2] and reiterated that the four-factor analysis of Graham v. John Deere Co. of Kansas City[3] controls an obviousness inquiry by a patent examiner or a court.[4]

Graham requires a fact-finder to determine (1) the scope and...
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