Much of what the new KSR opinion does is re-set the mood one should use in analyzing nonobviousness.

For example, at the start of its analysis, the Court reaffirms that we should adopt a skeptical mood when considering the obviousness (or not) of a combination claim: “Neither the enactment of section 103 nor the analysis in Graham disturbed this Court’s earlier instructions concerning the need for caution in granting a patent based on the combination of elements found in the prior art. … The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” Slip op. at 11-12 (emphasis added) (discussing Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp. (1950)). And in canvassing the evidence on the point, we should err in favor of considering it: the Court’s “cases have set forth an expansive and flexible approach,” and “Graham set forth a broad inquiry and invited courts, where appropriate, to look at any secondary considerations that would prove instructive.” Slip op. at 11.

The Court describes two points on the inventiveness continuum. On the one hand, “when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.” Slip op. at 12. On the other hand, “when the prior art teaches away from combining certain known elements, discovery of a successful means of combining them is more likely to be nonobvious.” Id.

It also synthesizes its post-Graham decisions (Adams, Anderson’s-Black Rock, and Sakraida) into the following backdrop, or mood, for combination claims:

When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, section 103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. Sakraida and Anderson’s-Black Rock are illustrative - a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions.

Slip op. at 13.

Say it with me now: “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” Slip op. at 17. [ Put another way, we can bury - at long last - the ill-conceived Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 454 (Fed. Cir. 1985). ]