Inventing Invention: A Case Study of Legal Innovation

72 Pages Posted: 3 Feb 2008 Last revised: 12 Mar 2009

See all articles by John F. Duffy

John F. Duffy

University of Virginia School of Law


At the beginning of the nineteenth century, all countries having patent systems required patentable inventions to be both new and useful. Now those two fundamental requirements have been joined by a third: Patentable inventions must also be nonobvious. The nonobviousness requirement is considered to be so central to patent policy that it has frequently been called the doctrine of invention, inventive step or simply the patentability requirement. This Article traces how this defining doctrine of invention was itself invented by the world legal culture. For scholars of intellectual property law, this history provides significant insights into the proper functioning and continued development of the doctrine. But the case study also gives much more general insights into the process of legal development, showing how one successful doctrine grew up and conquered the world while many failed doctrines with promising beginnings withered. The history reveals that the legal system itself is capable of generating true legal innovations - i.e., intellectual advances that are objectively better ways for accomplishing the purposes of the law. Such legal innovations can take decades, even centuries, to develop, and flawed doctrines can remain stable law for large portions of a century before their downfall. The case study has obvious relevance to the great debate over the so-called positive theory of the economic analysis of law and suggests that economic analysis should have a more unabashedly normative component, which might facilitate innovation and progress in law.

Keywords: Patents, Invention, Innovation, Obviousness, Nonobviousness, History, Positive Theory of Economic Analysis of Law

JEL Classification: K00, O31, O34, K20, K11, K40

Suggested Citation

Duffy, John Fitzgerald, Inventing Invention: A Case Study of Legal Innovation. Texas Law Review, Vol. 86, No. 1, 2007, Available at SSRN:

John Fitzgerald Duffy (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-8544 (Phone)


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