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The Implications of Technological Advancement for Obviousness

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

Brenda M. Simon

Thomas Jefferson School of Law; Stanford Law School - Center for Law & the Biosciences

Date Written: September 25, 2012

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

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: https://ssrn.com/abstract=2152123

Brenda M. Simon (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4307 (Phone)

Stanford Law School - Center for Law & the Biosciences ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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