In a recent opinion [DSS Technology Management. v.
Apple Inc., (Fed. Cir. 3/23/2018)], the Federal
Circuit iterated that the Patent Trial and Appeal Board ("the
Board") must provide additional rationale beyond
"ordinary creativity" and "common sense" for
modifying a single reference for rendering a claim invalid.
Reference to the "ordinary creativity" of the ordinary
skilled artisan by the Board was deemed equivalent to a reference
to "common sense."
There are three caveats for invoking "common sense" in
an obvious analysis (Arendi S.A.R.L. v Apple Inc.):
1. Common sense is typically invoked to provide a known
motivation to combine, not to supply a missing link;
2. Common sense can be invoked to fill in a missing limitation
only when the limitation in question is unusually simple and the
technology particularly straightforward; and
