A Federal Circuit decision that faulted the Patent Trial and Appeal Board for invoking “common sense” to find that a patent asserted against Google was obvious illustrates the danger of using the expression in patent law and will require the PTAB to more rigorously explain obviousness rejections, attorneys say.

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Of course, there may be cases where some aspect of technology was such common sense that no one thought to write it down, and in those cases, common sense may be the best argument a challenger has, said Douglas Robinson of Harness IP & Pierce PLC.

“It’s not something you have to avoid at all costs,” he said. “But if you rely on a document or prior art instead, you avoid this whole argument.”

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