Is Evidence Of Obviousness Always Required?

In K/S HIMPP v. Hear-Wear Technologies, LLC, the Federal Circuit affirmed the decision of the Patent Trial and Appeal Board (PTAB) that upheld the decision of the Central Reexamination Unit Examiner that refused to hold claims obvious where the inter partes reexamination requestor had failed to provide any evidence that the claim element at issue was known in the art. Judge Dyk's strong dissenting opinion is notable for taking the USPTO to task for failing to invoke its own technical expertise to invalidate the claims at issue without requiring direct evidence of obviousness.

The Patent at Issue

The patent at issue was Hear-Wear's U.S. Patent 7,016,512, directed to a "hearing aid with three main parts: a behind-the-ear audio processing module, an in-the-canal module, and a connector between the modules." Claims 3 and 9 were at issue: