More on “common sense”

The panel in Source Search Technologies, LLC v. LendingTree, LLC weighed in on the common sense issue during oral argument.  You can listen to Judge Plager’s remarks and Judge Rader’s tongue in cheek remarks here: [Listen].

The invention at issue in this case was invented in the 1995-96 timeframe.  At one point during the oral argument Judge Rader made the interesting inquiry of appellee’s counsel that given the nascent stage of the internet in 1995-96,  what would have been the motivation or market force to combine brick and mortar references to achieve the claimed invention. [Listen].

 Judge Plager had the following follow-up comment for appellee’s counsel [Listen] to which Judge Rader responded.

Query:  People often note the speed with which the internet has evolved.  Should that change the calculus in the consideration of “long-felt need” under the Graham factors?  If it takes less time for innovation to occur in the art of computers and the internet as opposed to the art of plows and combines, wouldn’t it be appropriate for long-felt need to be assessed relative to the speed with which an industry evolves?

You can read the court’s opinion here: [Read].

You can listen to the entire oral argument here: [Listen].

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