Objective evidence of nonobviousness traces its roots to 19th century case law from the U.S. Supreme Court.

The analysis of such secondary considerations as commercial success, failure of others, and long-felt but unresolved needs, among others, solidified its place in the obviousness framework as one of the four factors enunciated in the 1966 Graham v. John Deere Co. decision.

Yet, despite decades upon decades of patent litigation, questions remain regarding the proper sequence of presentation of this type of evidence in a patent dispute.

Originally published on Law360.