KSR "common sense" at issue at CAFC in HIMPP case
HIMPP, an inter partes challenger of Hear-Wear's patent, appealed a decision of PTAB to the CAFC. The CAFC affirmed PTAB, and the patentee won.
At issue was the level of evidence presented by HIMPP. The CAFC mentioned the element at issue represented a "core factual finding" and thus requires
more evidence than conclusory statements.
The CAFC had to distinguish this case from certain pronouncements in KSR, relating to the use of common sense. Here, there was no evidence upon which
common sense could operate. The matter of official notice arose.
Judge Dyk dissented. Judge Dyk felt that KSR did impact this case.