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Common sense in patent law

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This article discusses common sense for obtaining patents in litigation. Since the teaching, suggestion, or motivation (TSM) would allow one to argue that a combination was improper. A strict reading of the TSM test could make allowable a claim that would rely on elements which in the course of business would have been combined by a person in the field. The test was used by patent attorneys in obtaining patents over rejections. A defendant might raise the argument that a patent is invalid because the patent should never have been issued, since the claims are obvious to a person of ordinary skill in the art. The patent holder could rely on TSM to prevail against a defendant.

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IEEE Communications Magazine  (Volume:45 ,  Issue: 10 )