The Innovation And Inspiration Of The Non-Obviousness Standard Of Invention Patent In The U.S.

The United States has always attached great importance to intellectual property law in the economic life and market competition, especially to the patent system which is an important component part of the intellectual law system. At the same time, the analysis of the non-obviousness of a patent--one of the substantial conditions for inventive patent-- is a crucial problem which is difficult to understand. For nearly three decades, The United States followed the principal established by the judgment of the United States Supreme Court in 1966 Graham v. John Deere case, which has the following four essential factors to every non-obviousness analysis: (1) Level of ordinary skill in the art; (2) scope and content of the prior art; (3) Differences between the claimed invention and the prior art; and (4) Secondary consideration (i.e., objective indicia of non-obviousness). Under Graham's analytical framework the federal circuit has applied a"Teaching, Suggestion or Motivation"(TSM) test for determining whether an invention meets the non-obviousness standard. However, affected by the"pro-patent policy", the courts of the United States adopt overly rigid standards in the patent litigation in recent years, in essence, lowering the creativity of a patent request, which makes the TSM test a controversial question. American society, especially some multinational corporations hope to bring some change. Undoubtedly, the KSR case provided a good platform and opportunity to change the TSM test.The Supreme Court of the United States overturned the decision of the Federal Circuit Court of Appeals on the case of KSR V. Teleflex, because the latter applied the TSM test on the analysis of non-obviousness, which is too rigid. At the same time, the Supreme Court noted that the TSM test not only violate the Graham's analysis framework but also amended the TSM test. This decision has given important influence to the non-obviousness standard and makes it difficult in granting a patent.The Supreme Court held that the Federal Circuit had erred by applying its TSM test too rigidly and reversed the judgment and the Court noted that the TSM test not only violate the Graham's analysis framework but also reviews and critiques the TSM test. In the future this would give important influence to the non-obviousness standard and make it difficult in granting a patent.In the article the writer attempts to summarize some inspiration and propose some views on the analysis of the creativity of a patent in addition to the judicial practice and the patent examination in China, making use of the analysis of faultiness itself and amendment of the TSM test.This article is divided into three chapters. The first chapter gives comparison analysis between non-obviousness and creativity and also discussion between the non-obviousness analysis and novelty analysis so that we can have a general knowledge about the non-obviousness analysis. And that after understanding these conceptions the writer focuses on the discussion about the formation process of the TSM test and analyses the essential content of the TSM test.The second chapter is a specific study. Through revealing the shortcomings of the TSM test, the writer discusses and summarizes the reality reasons and theoretical reasons of the amendment of the test made by the United States. And then the writer set forth the result produced by this amendment and the content of the non-obviousness analysis standard after this amendment.The third chapter is that based on the analysis of the creativity standard in China and the comparison of the background of the two countries standard, the author makes a conclusion about the enlightenment and countermeasure brought by the innovation of the United States'non-obviousness standard to us.