The Implications of Technological Advancement for Obviousness

Abstract

This Article examines whether advances in technology can make an invention too obvious to deserve a patent. It focuses on two developments in technology with the most pervasive effect on cognition in recent decades: the availability of information in a searchable form and increased processing capabilities. The assumption has been that access to information and computing power will result in better understanding, improved creativity, or decreased uncertainty, when it in fact may not.

I propose that courts and examiners, in assessing obviousness, look at whether persons of ordinary skill in the art actually appreciated the applicability of technological advances at the time in question. Those skilled in diverse technological fields often adopt advances to different degrees and at varying rates. Refocusing the obviousness determination on what actually happens helps guard against hindsight bias.

Keywords: intellectual property, patent, creativity, nonobviousness, science, invention

JEL Classification: O31, O34