August 31, 2016
In Arendi v. Apple, Google, Motorola Mobility (CAFC 2015-2073), the patent appeals board exercised illicit bias towards reexamination petitioners Apple et al by adding a missing limitation to a prior art reference and thereby declaring 7,917,843 obvious via "common sense." The CAFC reversed, not wanting the PTO's biases so obvious.
Patent law is the only law in the land where no evidence is required for condemnation. As the CAFC stated: "'Common sense' may only be applied when combining references that disclose all the required limitations. Though less common, in appropriate circumstances, a patent can be obvious in light of a single prior art reference if it would have been obvious to modify that reference to arrive at the patented invention." To be sufficiently obvious, the limitation in question has to be "unusually simple and the technology particularly straightforward. 'Common sense' - whether to supply a motivation to combine or a missing limitation - cannot be used as a wholesale substitute for reasoned analysis and evidentiary support, especially when dealing with a limitation missing from the prior art references specified."