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[T]he so-called patentability requirement was invented by the Americans, in particular the Justices of the U.S. Supreme Court in the famous case Hotchkiss v. Greenwood in 1850.
-Friedrich-Karl Beier1
This is a story about innovation-legal innovation. At the beginning of the nineteenth century, all countries having patent systems generally required patentable inventions to be both new and useful. Those two requirements have now been joined by a third: Patentable inventions must be new, useful, and nonobvious. This development is not unique to the law of the United States. Every nation in the World Trade Organization now applies these three standards in awarding patents.2
Though nonobviousness is the most recently developed of the three requirements for obtaining a patent, it is now generally considered to be the defining feature of invention. Indeed, in the United States, what is today called nonobviousness was for about a century known as the invention doctrine,3 and in many countries, the doctrine is still known as the inventive step4 or simply the patentability requirement.5 The doctrine is widely understood to be so fundamental to the proper functioning of the patent system that it can be accurately described as the "final gatekeeper of the patent system,"6 the "ultimate condition of patentability,"7 and "the heart of the patent law."8 This Article traces how this defining doctrine of invention was itself invented by the world legal culture.
For scholars of intellectual property law, this history provides significant insights into the proper functioning and continued development of the doctrine. For example, one great puzzle posed by this history is how early patent systems could possibly have functioned without any doctrine similar to what is now seen as a central and fundamental pillar of innovation law. To a great extent, the emerging modern theory of nonobviousness helps to solve this puzzle: Modern theory predicts that the nonobviousness requirement plays its most important role where society and technology are experiencing rapid change. In a more static society, theory predicts that the obviousness doctrine would be less important. Thus, this Article shows that history and theory are mutually reinforcing, for the nonobviousness requirement did not develop until the rapid technological and social changes of the nineteenth century demanded it.
The case study presented in this Article is also...