Michael Keyes, A Re-examination of the Problem of Nonobviousness and Patent Validity, 4 Gonz. L. Rev. 65 (1968).
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Although the requirement of nonobviousness for patentability is a statutory creation of relatively recent vintage, its impact on patent validity through the media of case law can easily be traced back a hundred years. As a result, instead of the concept possessing a succinctly definable essence, it is disconcertingly vague. In 1966, after a silence of sixteen years, the Supreme Court handed down the first decisions’ on the validity of patents under the 1952 Patent Act, but did little to clarify the nature of nonobviousness. The Courts of Appeals are still not uniform in the intensity of application of the prerequisite of nonobviousness.4 This is a direct consequence of the pre-1952 case law gloss which is far more demanding than the pres- ent statutory formula. This split is further aggravated by the failure of both sides, those who favor lenient granting of patents and those who would be more strict, to view the problem of nonobviousness in its proper perspective; i.e., the courts as constituted today do not have the technical background5 to determine what is truly obvious to a practioner of the prior art. . . .