Inventive step and non-obviousness

The inventive step and non-obviousness reflect a general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive—i.e., non-obvious—in order to be patented. In other words, "[the] nonobviousness principle asks whether the invention is an adequate distance beyond or above the state of the art."

The expression "inventive step" is predominantly used in Europe, while the expression "non-obviousness" is predominantly used in United States patent law. The expression "inventiveness" is sometimes used as well. Although the basic principle is roughly the same, the assessment of the inventive step and non-obviousness varies from one country to another. For instance, the practice of the European Patent Office (EPO) differs from the practice in the United Kingdom.

The purpose of the inventive step, or non-obviousness, requirement is to avoid granting patents for inventions which only follow from "normal product design and development", in order to eventually achieve a proper balance between the incentives provided by the patent system, namely encouraging innovation, and the social cost of the patent system, namely, conferring temporary monopolies. The non-obviousness bar, hence, is a measure of what we, as a society, accept as a valuable discovery. Additional reasons for the non-obviousness requirement comprise providing incentives for fundamental research rather than for "incremental improvements", and to minimize the "proliferation of economically insignificant patents that are expensive to search and to license".

According to the inducement theory, "if an idea is so obvious that people in the field would develop it without much effort, then the incentives provided by the patent system may be unnecessary to generate the idea". Thus, there is a need "to develop some means of weeding out those inventions which would not be disclosed or devised but for the inducement of a patent." Merges and Duffy regret that "the inducement standard was not influential in the legal doctrine, and its absence from subsequent case law raises one of the great unanswered questions of patent law: How can courts continue to ignore a seemingly reasonable and theoretically solid approach to determining patentability?"

While trying to weed out the "easy" inventions, the non-obviousness requirement brings in several downsides to the overall patent system, particularly in the pharmaceutical field, which depends on patent protection most heavily. For example,

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