In the recent oral argument of Cimline, Inc. v. Crafco, Inc., Chief Judge Rader raised an interesting issue with respect to the timing of an obviousness analysis when the analysis turns on the application of “common sense.” As you will hear in the following excerpt, the references issued at least ten years before the date of invention. Chief Judge Rader inquired whether it really was “common sense” to combine the references if it took ten years for someone to make the combination. [Listen].
While historically one thinks of timing as being irrelevant when it comes to combining references, perhaps there should be a requirement that gaps in time be considered when a party or a court takes the intellectually easy road of relying on “common sense.”
You can read the court’s opinion here: [Read].
You can listen to the entire oral argument here: [Read].
[…] This is not the first time that Chief Judge Rader has noted that old prior art might be less persuasive in an obviousness analysis. In the oral argument of Cimline, Inc. v. Crafco, Inc., Chief Judge Rader made the following comments about old prior art when a defendant asserted a common sense theory in combination with old prior art: [Listen]. See my earlier coverage of the Cimline case here. […]