The CAFC finds that negating "teaching away" arguments can amount toa showing of "reasonable expectation of success":In a final challenge to the Board’s decision, Merckcomplains that the Board never made an express findingthat a person of ordinary skill would have a reasonableexpectation of success in combining Serfontein andMarazza, or in further combining Serfontein, Marazza,and Ubbink. Under KSR International Co. v. TeleflexInc., 550 U.S. 398, 418, (2007), a factfinder’s analysis of areason to combine known elements in the art “should bemade explicit.” But KSR does not require an explicitstatement of a reasonable expectation of success in everycase. Cf. id. at 419 (cautioning against confining theobviousness analysis using formalistic rules). Here, theBoard addressed Merck’s arguments against a reasonableexpectation of success in the context of its teaching awayarguments. By rejecting Merck’s argument that the priorart…
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