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Secondary Indicia Doesn't Overcome Prima Facie Obviousness

The Federal Circuit agreed in a split decision that even a compelling secondary indicia was not enough to overcome a prima facie case of obviousness. In reviewing the district court's summary judgement finding of obviousness in Intercontinenntal Great Brands v. Kellogg, the court agreed that the great commercial success of cookie packaging was not enough to overcome the prima facie obviousness.  The court quoted Ohio Willow β€œ[W]here a claimed invention represents no more than the predictable use of prior art elements according to established functions, as here, evidence of secondary indicia are frequently deemed inadequate to establish nonobviousness.” Read the decision here.

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