Obviousness in Patent Litigation

Summary

A patent claim is invalid for obviousness if the claimed invention would have been obvious to a person of ordinary skill in the art before the effective filing date. See 35 U.S.C. § 103. Accused infringers commonly assert patent invalidity based on obviousness as a defense and counterclaim in patent infringement proceedings in federal district court or before the International Trade Commission (ITC). Parties challenging the validity of patents before the Patent Trial and Appeal Board (PTAB) also usually assert obviousness as a ground for patent invalidity. This practice note focuses on asserting and defending a claim of patent invalidity based on obviousness in district patent litigation. But the discussion also applies to obviousness in proceedings before the ITC and the PTAB.