Document Type

Article

Publication Title

Lewis & Clark Law Review

Abstract

This Article, a comment on the contributions of John Duffy, Rebecca Eisenberg, and Gregory Mandel, addresses three areas where improvements could be made in the law on nonobviousness. First, the quantum of inventiveness required for patentability should reflect the capabilities of the ordinary artisan. Second, the asymmetry in the error rate of nonobviousness determinations should be taken into account in setting the standard of nonobviousness. Third, the concept of nonobviousness—or, better, inventive step—should be operationalized by considering the opportunities, risks, and nonpatent incentives the inventor faced at the time of the innovation.

First Page

431

Volume

12

Publication Date

2008

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