A New Insight on the Non-obviousness of U.S. Patent Law: The Objective Indicia Under the Same Conditions

A New Insight on the Non-obviousness of U.S. Patent Law: The Objective Indicia Under the Same Conditions

 

Title
A New Insight on the Non-obviousness of U.S. Patent Law: The Objective Indicia Under the Same Conditions
Author
Yi-Hsien Liu
Keywords
Obviousness, Hindsight Bias, Synergy Test, TSM Test, Obvious-to-Try, Secondary Consideration, Patent, Empirical Study
Abstract
The test of obviousness has long been a problem which the courts and scholars
in U.S. are trying to resolve. This Article argues the objective indicia and the
timing of invention should have priority when considering nonobviousness, because
these factors can demonstrate the conditions at the time the invention was
made and therefore fit the requirement of Section 103 of Patent Law. Hence, this
Article tries to merge “Secondary Consideration” mentioned in Graham case by
Supreme Court with “the Timing Approach” raised by scholar, and argues if there
are objective evidences to prove that the person having ordinary skill in the art
faces the same conditions of invention, only the inventor can resolve the problem
successfully while others cannot, then the invention can be reasonably seen as
nonobvious. The most contribution of this research is overcoming problems of previous
tests of nonobviousness, especially the hindsight problem which was still not
solved in KSR case.
Abstract Article

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