Nonobviousness: The Unspoken Problem

Jared Gardner, Vanderbilt University

Abstract

This article compares the nonobvious requirement of patent law with results from research on creativity and the inventive process. It determines that an unrecognized hindsight bias infects the current nonobvious doctrine because the doctrine fails to appreciate the significance of defining the problem that leads to an invention. Reviewing and refining one’s view of a problem is integrally tied to the process of developing an inventive solution, and by uncritically defining the problem ex post a court overlooks this essential aspect of inventive activity. This article also explores the particular areas of an obviousness analysis that this hindsight bias affects and raises possible approaches, consistent with the Patent Act, to minimize the risk of bias.