Over a century and a quarter have passed since the Supreme Court in Hotchkiss v. Greenwood held that more than mere novelty is necessary to support a valid patent. Congress, after 100 years of experience with a concept which came to be called "invention," attempted to improve the situation by requiring that an invention not be "obvious" if it is to be patented. It seems safe to say that in the intervening time the doctrine of non-obviousness has not developed into a foolproof yardstick for measuring the quality of cerebral or other effort necessary to make an advance over the prior art a patentable one.
Date of Authorship for this Version
Field, Thomas G. Jr, "Post Hoc Evaluations of Obviousness: Preliminary Report of an Attempt to Identify, Empirically, the Characteristics of a Superior Evaluator" (1979). Pierce Law Faculty Scholarship Series. Paper 23.