The Implications of Technological Advancement for Obviousness

47 Pages Posted: 25 Sep 2012 Last revised: 19 May 2016

See all articles by Brenda M. Simon

Brenda M. Simon

California Western School of Law; University of California, San Diego (UCSD)

Date Written: September 25, 2012


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

Suggested Citation

Simon, Brenda M., The Implications of Technological Advancement for Obviousness (September 25, 2012). Michigan Telecommunications and Technology Law Review, Vol. 19, p. 331 (2013), Thomas Jefferson School of Law Research Paper No. 2152123, Available at SSRN:

Brenda M. Simon (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

University of California, San Diego (UCSD)

9500 Gilman Drive
Mail Code 0502
La Jolla, CA 92093-0112
United States

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