Federal Circuit: Analogous art test survives KSR, but obviousness affirmed

Thu, 02 Aug 2007 09:49:00-0500

In a case decided yesterday, the Federal Circuit affirmed a decision by the BPAI finally rejecting all but one claim of a patent under reexamination as obvious. The patentee admitted that all elements of the claims save one were present in two relevant prior art references and that another reference disclosed the final element, but argued that the third reference was nonanalogous art, and therefore the finding of obviousness was in error.

The Federal Circuit affirmed, holding there would have been a reason to combine the refernces. Notably, however, the court applied its pre-KSR analogous art test, namely that for prior art to be analogous (and available for use in an obviousness rejection), it must either be from the field of the invention or reasonably pertinent to the problem addressed by the invention. Here, court found the reference reasonably pertinent, and as a result affirmed the finding of obviousness.

More detail of In re Icon Health & Fitness, Inc. after the jump.

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Federal Circuit: Analogous art test survives KSR, but obviousness affirmed