At The Federal Circuit

Secondary Considerations: Of Primary Importance in Defending Against an Obviousness Challenge

To determine whether a claim is obvious, the decision-maker must:

1. determine the scope and content of the prior art;
2. determine the differences between the prior art and the claim at issue;
3. assess the level of ordinary skill in the pertinent art; and
4. evaluate evidence of "secondary considerations" (also known as "objective indicia of nonobvousness"). 

See Graham v. John Deere Co., 383 U.S. 1, 17 (1966). 

A patentee or applicant may rely upon several types of secondary considerations, including teaching away, unexpected results, solving a long-felt but unmet need, acclaim or praise of the claimed invention by others in the field, copying of the claimed features by competitors in the field, and commercial success.  For evidence of secondary considerations to be given weight, there must be a nexus between the evidence and the merits of the claimed invention.