{"id":5218,"date":"2012-06-02T15:42:29","date_gmt":"2012-06-02T21:42:29","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=5218"},"modified":"2012-06-04T09:45:05","modified_gmt":"2012-06-04T15:45:05","slug":"common-sense-2","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=5218","title":{"rendered":"Common sense"},"content":{"rendered":"

Now we know.\u00a0 After years of wondering what the phrase\u00a0“common sense” encompasses, we finally have a definition from the Federal Circuit.\u00a0 “Common sense” means knowledge so basic that it certainly lies within the skill set of an ordinary artisan.\u00a0 The Federal Circuit stated as much in its recent decision in Mintz v. Dietz & Watson<\/span>, App. No. 2010-1341 (Fed. Cir. May 30, 2012):<\/p>\n

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The district court made a clear error, however, in its unsubstantiated reliance on \u201ca common sense view\u201d or \u201ccommon sense approach\u201d to hold that it would have been \u201cobvious to try\u201d a locking engagement. The mere recitation of the words \u201ccommon sense\u201d without any support adds nothing to the obviousness equation. Within the statutory test to determine if a claimed invention has advanced its technical art field enough to warrant an exclusive right, \u201ccommon sense\u201d is a shorthand label for knowledge so basic that it certainly lies within the skill set of an ordinary artisan.<\/strong> With little more than an invocation of the words \u201ccommon sense\u201d (without any record support showing that this knowledge would reside in the ordinarily skilled artisan), the district court over-reached in its determination of obviousness.<\/span><\/p>\n

At this juncture, the district court\u2019s reliance on the perspective of an artisan in the knitting arts is especially problematic. The basic knowledge (common sense) of a knitting artisan is likely to be different from the basic knowledge in the possession of a meat encasement artisan.<\/strong> Moreover, the district court emphasized that the problem in the prior art was merely forming a checker-board or grid-like pattern. To be specific, the district court erroneously phrased the issue as whether it would have been obvious to simply \u201cfix each point of intersection\u201d of each strand in order to solve that problem.<\/span><\/p>\n

Mintz v. Dietz & Watson<\/span><\/span>, App. No. 2010-1341 (Fed. Cir. May 30, 2012).<\/span><\/p>\n<\/blockquote>\n

Interestingly, the Federal Circuit asserts this definition of “common sense” without citing any authority for the definition.\u00a0 Indeed, in prior opinions of the\u00a0CAFC or CCPA, the terms “common sense” and “common knowledge” (or “basic knowledge”) have been\u00a0recited separately\u00a0— thus, implying that they were not the same thing.\u00a0 For example, the KSR guidelines refer to: In re Bozek<\/span><\/span>, 416 F.2d 1385, 1390 (CCPA 1969) (explaining that a patent examiner may rely on \u2018\u2018common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference\u2019\u2019) and In re Zurko<\/span>, 258 F.3d 1379, 1383, 1385 (Fed. Cir. 2001) (clarifying that a factual foundation is needed in order for an examiner to invoke \u2018\u2018good common sense\u2019\u2019 in a case in which \u2018\u2018basic knowledge and common sense was not based on any evidence in the record\u2019\u2019).\u00a0\u00a0 Don’t get me wrong, though.\u00a0 I like the court’s definition of “common sense.”<\/span><\/p>\n

From a patent examination\/prosecution standpoint, I find the\u00a0association of “common sense” with an ordinary artisan (as opposed to the generality of mankind, regardless of their area of expertise) to be\u00a0interesting.\u00a0 Presumably, the PTO should require an examiner who is relying on “common sense” in a rejection to: (1)\u00a0recite who one of ordinary skill in the art\u00a0is; and, either\u00a0(2a) affirm that the examiner possesses\u00a0basic knowledge\u00a0in that art; or (2b) provide factual evidence\u00a0showing\u00a0what is\u00a0basic\u00a0knowledge in that art.\u00a0 As is the case already\u00a0under the KSR Guidelines, a bald assertion of “common sense” by itself would be\u00a0insufficient.<\/p>\n

\u00a0<\/p>\n

If you were wondering how long it has been since the Supreme Court referred to “common sense” in its KSR v. Teleflex<\/span> decision, it has only<\/em> been five years (April 2007).<\/p>\n

If you were wondering if the issue of “common sense” was addressed during the Federal Circuit oral argument — it was not.<\/p>\n

You can read the Mintz opinion here: [Link<\/a>].<\/p>\n

\u00a0<\/p>\n

\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

Now we know.\u00a0 After years of wondering what the phrase\u00a0“common sense” encompasses, we finally have a definition from the Federal Circuit.\u00a0 “Common sense” means knowledge so basic that it certainly lies within the skill set of an ordinary artisan.\u00a0 The Federal Circuit stated as much in its recent decision in Mintz v. Dietz & Watson, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/5218"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=5218"}],"version-history":[{"count":20,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/5218\/revisions"}],"predecessor-version":[{"id":5237,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/5218\/revisions\/5237"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5218"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5218"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5218"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}