July 3, 2011
It Ain't So Obvious
Patent law and standards of patentability have evolved over the past hundred years. Once upon a time novelty and utility were the sole standards of patentability. Over the years a third standard-non-obviousness-was added as a hurdle to overcome for an invention to be granted a patent. In retrospect, one can say that this was necessary in order to prevent trivial inventions from being patented.
Needless to say, the standard of obviousness is not so very obvious. This is due to a number of reasons. For one, courts are not very clear in setting objective standards of obviousness. Secondly, the progress of technology is much ahead of law and laying down agreeable standards of obviousness in areas like software, biotechnology or nanotechnology is still a distant dream. Then again, objectifying a subjective standard of obviousness is not an easy task. Reversing the onus probandi on the courts to set objective standards is simpler than trying to set them by oneself.
Obviously, the standard of obviousness cannot be covered in one post. So I will lay out the plan for the posts to come. Firstly we will briefly cover the development of the non-obviousness doctrine in patent law. Thereafter we shall see some recent judgements in the area of non-obviousness. Then we shall take up specific sectors of technology and delineate, through court decisions, the standards of obviousness set down therein. Finally we will make a comparison among the various sectors to see if some set of objective standards can be culled out. This exercise will obviously be interesting as the standards for software itself will vary from that of, say, a mechanical invention. “Obviously”, you might retort. But then again, the standard of obviousness itself varies between jurisdictions. For example, a software patent in the USA may not be granted in the EPO if it does not provide a “technical solution” to a “technical problem”.