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.

 

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