| A patent is often characterized as a bargain between an inventor and society. Generally, for a patent to be considered valid, an invention must satisfy three broad criteria: it must be new, useful, and non-obvious. This paper focuses on the requirement of non-obviousness. It explores the criterion from inception to its current state and suggests a potential refinement. A multi-jurisdictional snap-shot is presented focusing on the United Kingdom, Australia, the United States, and Canada. It is submitted that the non-obvious prerequisite contains a problematic level of uncertainty. The law of obviousness lacks a baseline standard. To achieve certainty, it is suggested that the law adopt the principles pertaining to patenting combinations and aggregates. Ultimately the law of patents, inclusive of the doctrine of obviousness, must be fashioned and administered in a manner that respects the quid pro quo that has guided the law for many years. |
