Whether enforcing a patent or prosecuting a patent application,
obviousness is often the key issue. The Patent Examiner (in the
case of a patent application) or the Court (in the case of an
issued patent) must determine if a claimed invention is obvious in
view of the prior art and the knowledge and skill or persons of
ordinary skill in that art. In Mintz v. Dietz & Watson
the United States Court of Appeals for the Federal Circuit (the
Federal Circuit) held that bald conclusory statements that a
claimed invention is obvious in view of "common general
knowledge", are unacceptable unless supported by objective
evidence.
An argument that a claimed invention is obvious is necessarily a
fictional exercise based on hindsight. Obviousness is an issue
neither of what was done, nor of what could have been done
(all inventions could have been made before – but were
not). Rather it is what that person skilled in the art
would have done. In both Canada and the U.S.,
