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Negativing Invention, Jacob S. Sherkow

Articles & Chapters

Since 1952, the patent statute has forbidden courts from discriminating against, or “negativing,” inventions according to how they were made, be it “long toil and experimentation” or a “flash of genius.” Now, in addressing whether an invention is “obvious,” courts must only examine whether the invention was obvious according to the arts pertinent to that invention — the “analogous” rather than “nonanalogous” arts. This article shows that this dichotomy has actually promoted method-of-invention discrimination in patent law because the subjectivity of the analogous art inquiry has increasingly “analogized” wide fields of prior art as technology has progressed. This, in turn, …