Abstract
This brief essay on nonobviousness originates from a series of conversations, emails, and preliminary drafts between Dmitry Karshtedt and myself that, sadly, never got a chance to fully evolve. We were exploring what the law says, and perhaps should say, about inventions that are technologically small advances, yet unmotivated by prior art. As Dmitry so aptly framed it, “The question we’re dealing with is, what if everyone thought that something was really hard or unworkable, but turned out to be a straightforward, minor improvement? Obvious or no?” This essay puts to paper our exploration of this question. The law’s emphasis on the cognitive approach to nonobviousness typically grants protection for such inventions, but there are policy reasons to be skeptical of granting patents for minor inventions. In the end, protection may, on net, be warranted for inventions unlikely to be created. Ultimately, the definition of technological progress in the nonobviousness context should include overcoming substantial cognitive barriers, even if the resulting invention is simple.
Document Type
Article
Publication Date
2023
Recommended Citation
Christopher A. Cotropia, Nonobviousness and Unmotivated, Yet Minor, Inventions, 21 Nw. J. Tech. Intell. Prop. 281 (2023).
