Keys To Success Through Secondary Considerations At PTAB

By Michael Kiklis and Matthew Zapadka (May 26, 2020, 5:14 PM EDT) -- With only a few success stories, proving nonobviousness through secondary considerations (also known as "objective indicia of nonobviousness") has always been challenging at the Patent Trial and Appeal Board. Presenting such a case takes a lot of time and resources to find and develop evidence and, therefore, can hardly seem worth it.

The PTAB recently issued guidance on secondary considerations in nearly all the procedural contexts in which it will decide this issue: America Invents Act trials and appeals from prosecution and ex parte reexams. The PTAB provided much needed strategic direction, which can mean the difference between winning and losing....

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