One of the five basic tenants of patentability is "nonobviousness."
The other four are: subject matter requirement, written description, utility, and novelty. For the purpose of this blog, I'm not going to go into these other four and will simply discuss the word "obviousness." Nonobvious means that a "person having ordinary skills in the art wouldn't have easily thought of it given the plurality of prior art."
Even when combining two prior art references, it may not be obvious to do so, for example a glow stick and a toothbrush to create a glow-in-the-dark toothbrush. Are the two products obvious to combine? If so, then a patent might not be granted, but if it's not, then a patent could be issued.
Also, the more prior art references an examiner needs to cite in order to reject claims based on obviousness, the weaker their argument against patentability.
I want to discuss how the patent system has incorporated such a subjective notion into a legal framework. Although it seems as though there is some legal precedent to distinguish between what is obvious and what is not in certain industries, I feel that the concept of obviousness is too hard to legally define from an objective standpoint.
Good point I feel that it is hard to legally define the word as well.
ReplyDeleteinteresting. the prof has just mentioned that it is "causing these companies more trouble", but im also interested in seeing what this word has caused lawsuits / companies to be more complex / arguable. say has anybody actually based a case on this term?
ReplyDeleteI found it interesting that there is such debate over one word and that there have been cases about it, as we learned in class. It's also intriguing but not completely surprising that are entire classes taught in law schools dedicated to learning what is "obvious."
ReplyDeleteVery interesting and informative post Aviv. It is interesting like Noah said how millions and even billions are contemplated over this one word. It should definitely by taught in any patent engineering class knowing how so much money is decided on that one word.
ReplyDelete@Allista, I think this word provides a good overview of the patent system, in that it is unclear what kind of impact it has on enforcement and regulatory practices. How could an enforcing body claim that something is "obvious" when such a term can be so subjective? I don't see how this term is such a big piece of the patent system if there hasn't been any litigation regarding this word.
ReplyDeleteThis reminds me when the German court denied the Apple's round corner design for the iPad. I think that to patent a design is very subjective, which can also relate to the discussion of obvious/nonobvious.
ReplyDelete@Angela, It's interesting to consider how much revenue such a design patent can create for a given technology. If a certain design can make or break the profitability of a product, it might be worth considering in a legal framework.
ReplyDelete@James, Sometimes, a product might be non-obvious, but then might be considered stupid, like we discussed in class today. If an invention is nonobvious, but has zero practical usefulness, should it be patentable?
ReplyDeletein Law it's always an argument about the wording used in the patent or issue at hand. It'll always be a discussion in my opinion.
ReplyDeleteI agree with you; it's totally hard to define. However, I imagine that the idea of obviousness is developed such much further in law schools, that it becomes more rigorous.
ReplyDeleteOr perhaps they find it as vexing as we do...
Also interesting to note is that as time progresses and technology advances, our interpretation of "obviousness" will change too. Based on what kind of environment a person was raised in, obviousness encompasses different areas. This is why the patent system will forever change along with technology, and lawyers will have to constantly debate on this term.
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