The Evolution Of "Non-Obviousness" In The US Patent Law

This dissertation demonstrates the evolution of non-obviousness in the US patent law. Non-obviousness, as well as novelty and utility, are the three basic requirements for patentability in the US patent law. Among them, non-obviousness is the most important, as well as the hardest as to judging.Chapter 1 exhibits the history of non-obviousness in the US patent system. While the US patent system was initially established, patentability only required novelty and utility, the concept of non-obviousness was not developed and not clearly stipulated in the written law, moreover, it was even refused by the courts. In 1850, the decision of the supreme court in the case of "Hotchkiss" raised the requirements as to non-obviousness by the words like "originality " and "inventiveness". Since the end of 1960s, the case law of the supreme court had defined non-obviousness and novelty,utility as the three requirements for patentability, non-obviousness had even became a reason for objection while challenging the validity of a patent. With the development of the patent system, a higher criteria as to non-obviousness of "ingenious sparkle" was even raised.Chapter 2 discusses the establishment of the non-obviousness clause and its judging rules. In 1952, the Patent Act was amended in the US, it added the clause of non-obviousness, by doing so it raised the requirement for non-obviousness, and at the same time it denied the overwhelmingly high criteria of "ingenious sparkle". The US Federal Circuit courts established Graham and TSM tests by case law, and further unified the steps while judging non-obviousness.Chapter 3 discusses the latest interpretation of non-obviousness in the case of KSR v. Teleflex, also summarized and analyzed its evolution in the US patent system. The rule of non-obviousness keeps on changing and developing in the legal practice, while the wording in the written law remains relatively stable. The criteria of non-obviousness fluctuate between "novelty" and "ingenuity", and it keeps on adjusting and looking for the balance. Whether the rule can really bring an active role of the patent system in the practice, and maintain the benefits exceeding detriment of the patent system, reach the balance between the interests of patentees and the public, is the important motivation to keep the rule developing.Chapter 4 compares the criteria of non-obviousness of China and US, and by referring to the success of the evolution of the criteria of non-obviousness in the US, suggestions as to improve the criteria of non-obviousness in China has been proposed. Personally, as to the criteria of non-obviousness, the scope of prior art should be expanded, enrich the meaning of the skilled person, and appropriately limit the usage of common sense.In conclusion, the evolution of non-obviousness in US patent system experiences the following five stages: in the bud, developing and wobbling, stable, improved and well-developed. Every stage in the history, it seeks the balance between "novelty" and "ingenuity". Non-obviousness rule evolves both in the written law and legal practice, while in the case law it develops actively, in the written laws it develops stably, and they supplement and improve each other, and boost the improvement and development of the rule collectively. While China improves the criteria of non-obviousness, a regent mode should be avoided; finally, the rule should be timely adjusted according to the needs of science and technology and the economic development, and make it better serving the growth of science and technology and the development of China's comprehensive strength.