How Obvious Is Nonobviousness?

Honors Business Law

March 25, 2009

How Obvious is Nonobviousness?

Under U.S. law, nonobviousness is really the most significant hurdle an aspiring patentee has to jump over in order to be permitted to exclude others from making, using, offering to sell, or selling in the United States anything covered by the claims of their patent, during the patent’s term. The use of the term “nonobviousness” instead of that of “obviousness” simply reflects the rule that a patent is assumed to be nonobvious. This obstructive requirement was itself not clear and in fact was a matter of modification and controversy over the years. This becomes evident when studying the history of patent law, especially the Supreme Court decisions prior to1952, the passing of the nonobviousness-testing Patent Act of 1952, and the Supreme Court decisions following the enactment of this Act.

The timeline for patent law is an interesting one. Patent law has roots back as far as the times of Aristotle. In his book Politics, this philosopher mentioned that Hippodamus of Miletus proposed a law that stated “to the effect that all who made discoveries advantageous to their country should receive honours.” But patent law did not reach the United States until the thirteen American colonies were developing. Massachusetts was the first colony to grant a patent in 1641 and was then followed by most of these colonies. Eventually, interstate conflicts demonstrated the need for a uniform system of patents. In 1850, the Supreme Court instituted a requirement that an invention had to be nonobvious in relation to those inventions that had come before it. Major changes were also made to this patent statute to relieve thejudges of their growing examination duties, and a modified Patent Act that tested for nonobviousness was passed in 1952. This Patent Act of 1952 survives today with few modifications, and is therefore the most recent revision of the patent laws.

Clearly, American inventors have...