Federal Circuit Affirms Use of Common Sense for Obviousness Determination

| Jeremy Anapol


Before Lourie, Reyna, and Hughes. Appeal from the Patent Trial and Appeal Board.

Summary: Common sense may be invoked in obviousness determination if accompanied by reasoned analysis and supporting evidence.

C&D Zodiac filed petitions for inter partes review of patents owned by B/E Aerospace. The challenged claims recited space-saving modifications to the walls of aircraft enclosures (e.g., lavatories). The claims required (a) a first recess accommodating a seatback and (b) a second recess accommodating a seat support (e.g., rear seat leg). Zodiac argued that the challenged claims were obvious even though none of the asserted prior art references disclosed the second recess.

The Board found that the prior art taught the first recess, and skilled artisans would have added the second recess because it was an obvious application of a known technology. The Board also found that it would have been a matter of common sense to incorporate the second recess.

B/E appealed, arguing that the Board’s obviousness determination was improper because the asserted prior art references did not disclose the second recess. The Federal Circuit found that modifying the prior art to include the second recess would have been nothing more than a predictable application of known technology. A skilled artisan would have seen the benefit of the first recess and applied a variation of the first recess to create the second recess. The Federal Circuit added that the Board’s use of common sense was proper because it was accompanied by reasoned analysis and evidence showing that lower recesses were a well-known solution for providing space for seat supports.

Editor: Paul Stewart