From LegalTalk Network, a podcast featuring Matthew Buchanan and other patent experts going over the implications of KSR. This is an older podcast--it's instructive to review it to see if the trends are as expected.

The case Leapfrog Enters., Inc. v. Fisher-Price, Inc., __ F.3d __ (Fed. Cir. 2007)(Lourie, J.): Download file

And Icon Health...stating "[a] reference is reasonably pertinent if, even though it may be in a different field from that of the inventor’s endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem." In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992). In other words, ‘familiar items may have obvious uses beyond their primary purposes.’ KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1742 (2007)." Download file

And selections from Greg Aharonian's commentary on the PTO obviousness guidelines:

This week, the PTO issued revised guidelines for obviousness determination during patent examination, in response to the KSR decision... The guidelines are clearly trying to define what the meaning of "obvious" is in 35 USC 103, which is substantive rule making, despite the PTO's denials to the contrary, with any contradictions between the guidelines and what is now in MPEP decided in favor the guidelines. The PTO has no statutory right to use the word "predictable" in its guidelines...

The new guidelines are welcome only in that they forcefully and repeatedly answer this question thusly:

"IS OBVIOUS" IF "IS PREDICTABLE"

I quote from various sections of the Federal Register (vol. 72, No. 195, starting at page 57526):

57526, col 3: "... combination ... is likely to be obvious ... yields PREDICTABLE results ... a mere [obvious] substitution ... more than yield a PREDICTABLE result ..."

57527, col 1: "... no more than one would expect [PREDICT] from such an arrangement ... implement a PREDICTABLE variation would recognize [PREDICT] that it would improve ... PREDICTABLE use of prior art elements ..."

57527, col 3: "... a person would have reasonably expected [PREDICTED] to have been able to do ... 57529, col 1: "(A) Combining ... to yield PREDICTABLE results ... (B) Simple substitution ... to obtain PREDICTABLE results ... (C) ... known techniques .. in the same [PREDICTABLE] way; (D) ... known technique ... to yield PREDICTABLE results; (E) "Obvious to try" .. FINITE number of PREDICTABLE solutions, with a reasonable expectation [PREDICTION] of success; (F) ... variations would have been PREDICTABLE ...."

57530: col 2: "Obviousness does not require absolute PREDICTABILITY of success."

The guidelines go on to repeatedly use "predictable" as the test for obviousness.

Greg doesn't like all this, finding it all very uncertain. I think though, that as a substantive matter, one could do much worse in defining that which is obvious. Looking for predictability at least helps avoid the problem of some character staking out a patent where he sees the technology heading, waiting for infringing products to be developed, and then suing everybody.

And the actual PTO guidelines: Download file