By Michael Borella — In academic settings, objective indicia of non-obviousness are sometimes presented as a common way of rebutting contentions that a claimed invention is obvious. These indicia, set forth in Graham v. John Deere Co. and reiterated in KSR Int’l Co. v. Teleflex, Inc., include commercial success, long felt but unsolved needs, unexpected results, copying by others, industry praise, and failure of others. While aesthetically pleasing from a procedural point of view, secondary considerations are notoriously difficult to successfully apply outside of law school exams. This difficulty is largely due to the requirements that: (1) the evidence actually…
