The Supreme Court has breathed life into a theory of obviousness that the Federal Circuit has long rejected - namely, the theory that an invention would have been obvious because it would have been obvious for the ordinary artisan to try it out. [ A leading Federal Circuit case is In re O’Farrell, 853 F.2d 894, 903 (1988). ]

Here’s the Supreme Court’s take …

The idea that a designer hoping to make an adjustable electronic pedal would ignore [the] Asano [prior art reference] because Asano was designed to solve the constant ratio problem makes little sense. A person of ordinary skill is also a person of ordinary creativity, not an automaton.

The same constricted analysis led the Court of Appeals to conclude, in error, that a patent claim cannot be proved obvious merely by showing that the combination of elements was ‘obvious to try.’  When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp.  If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.  In that instance the fact that a combination was obvious to try might show that it was obvious under section 103.

Slip op. at 17.

In other words, a patent claim can be proved obvious merely by showing that the combination of elements was obvious to try.  I think, too, that the robust “reasonable expectation of success” aspect of the Federal Circuit’s nonobviousness jurisprudence is now largely untenable.