What is startling about today’s patent system is that the vast majority of great inventions of the last two centuries would not be patentable under our current system.  This is primarily because today we give patents to only those ideas that are so-called “truly inventive”. In other words, coming up with a new idea doesn’t get you a patent. The invention has to be above and beyond an “ordinary” invention to get the patent office stamp of approval. Put another way, to secure a patent, the invention can’t be “obvious”.

Novelty Versus Obviousness

How does this work? Logistically, examiners can declare a patent claim “obvious” by taking bits and pieces from different documents, putting them together, and saying that it would have been obvious to combine all these pieces to come up with your invention. The problem with this approach is that every invention is cobbled together from the scraps of old ideas. Therefore every patent application can be rejected if the examiner simply declares the idea to be “obvious.”

Why do we even need this requirement? Can’t we return to the simple novelty test along with the provisions of the 1836 Patent Act? For over a century innovation in America boomed, at a time when there was no obviousness test or the doctrine of equivalents.

What if we eliminated the obviousness requirement, took away the doctrine of equivalents, shortened patent terms and forced applicants to prove they have built a working model? It worked before. Let me know if you think it could work again.