Today, Wed., May 30, 2012, in Mintz v. Dietz & Watson, No. 2010-1341, the Federal Circuit (Rader, Newman, and Dyk) vacated a summary judgment of invalidity because the district court improperly applied many of the Graham obviousness factors.

This case provides incremental insight into the evidentiary basis required to assert or defend against an obviousness challenge in predictable technologies – e.g., netting used to wrap meat in the instant case – in order to avoid improper hindsight tainting the analysis.  Some key points addressed in the case include:

·        Properly defining the relevant person skilled in the art;

·        Avoiding a bare “common sense” approach without evidence of the skilled artisan’s “common sense” (a.k.a. basic knowledge);

·        That the invention must not be used to define the problem the invention solves (especially where defining the problem may be part of the inventive act); and

·        Considering secondary indicia of nonobviousness  that “help inoculate the obviousness analysis against hindsight.”