The short answer is yes, the KSR decision will complicate the issues and will not improve the problems you describe. But, the principles discussed in the post still apply post-KSR.

The KSR decision certainly makes it easier for an Examiner to make a 103 rejection based on “common sense” or that a modification would have been “obvious to try.” The KSR decision, however, also emphasizes (at least 4 times as I recall) that the rationale for the necessary modification/combination must be explicitly stated on the record. So, if the Examiner is making only a general allegation that a common sense modification of Smith suggests a claim feature, the very decision that authorizes this type of rejection also renders the rejection deficient as a matter of law.

And, the failure to make out a prima facie case precludes finality of the next Office Action because the rejection would not be based on a claim amendment or information in an IDS. See MPEP 706.07. The argument in support of this preclusion may include the following:

MPEP 2142, which provides that: (i) the Examiner bears the initial burden of factually supporting any prima facie conclusion of obviousness; and (ii) if the Examiner does not produce a prima facie case, the Applicant is under no obligation to submit evidence of nonobviousness.

MPEP 2143.01(III), which provides that the mere fact that a modification can be made is legally insufficient to establish a prima facie case of obviousness.

In an alternative circumstance, if the Examiner makes a deficient 102 rejection and then, in response to a patentability argument based on the absence of a prima facie case, makes a 103 in the next Office Action, that next action likewise cannot properly be made final because the rejection would not be based on a claim amendment or information in an IDS.

Do you think that KSR will complicate the issues on #3 above? Will the Examiner simply say, for example, that Smith might not explicitly teach it, but Smith in light of common sense makes is obvious. So we get a 103 rejection instead of 102 – and a final office action. We’ve seen problems of this nature before KSR, so I don’t see things improving.