In re NuVasive Emphasizes the Importance of Reasoning in the Obviousness Question.
Since KSR, 127 S.Ct. 1727 (2007), repudiated as “rigid and mandatory” the Federal Circuit “rule” for obviousness – that the prior art must provide a teaching, suggestion or motivation (TSM) to combine references so as to arrive at the claimed invention. Since then, it is my opinion that reliance on secondary considerations to support obviousness determinations has steadily increased. Such considerations include unexpected results, long-felt need, failure of others, teachings away from the invention, commercial success and the like. Likewise, Examiners have increased their reliance on factors such as common sense and routine optimization.