Obviousness in Patent Law
Most people generally understand why patents exist – to encourage innovation by granting a time-limited monopoly to the innovator as a reward. But, we only want to reward real innovation with the monopoly power that comes with getting a patent.
Being the first to do something is not enough – the new thing must be innovative. In other words, an inventor cannot get a patent for thinking up something that is an obvious extension of what came before it.
But what is obvious and what is not? This is a very central issue in patent law, and Philip Elmer-Dewitt’s excellent on-line column at CNN’s web site has a simple and straightforward discussion of the roots of the “obviousness” rule, its criteria, and how it continues to be applied in today’s world of patent litigation between tech companies. I highly recommend the column to anyone interested in technology or law. You can find it here: [Link].
What makes something “obvious” in the legal sense? The Supreme Court has provided a multi-part test to be applied by lower courts:
- The scope and content of the prior art
- The level of ordinary skill in the art
- The differences between the claimed invention and the prior art, and
- Objective evidence of nonobviousness.
As for the latter, the Court outlined examples of factors that show “objective evidence of nonobviousness.” They are:
- Commercial success
- Long-felt but unsolved needs, and
- The failure of others.