Hastings Communications and Entertainment Law Journal


This Note examines the Federal Circuit's approach to determining nonobviousness, the most difficult of the statutory patent requirements to satisfy, and the effect that inconsistent nonobviousness standards have on the individual inventor.

Since 1982, the Federal Circuit has made the commercial success of an invention the most important factor in determining whether an invention was not obvious and thus patentable. For the most part, the Federal Circuit's approach has helped the individual inventor. However, numerous obstacles arise when too much emphasis is placed on the marketing of the invention rather than on the creative act of inventing. In addition, the inconsistent application of the commercial success factor by district courts, particularly in regard to the burden of proof, creates further uncertainty which hampers individual inventors and small start-up companies with limited resources for commercial development.

This Note concludes by calling for the Federal Circuit to delineate clearly the commercial success factor in terms of burden of proof, standard of factual review, and the relation of commercial success to the primary nonobviousness factors, so that district courts and the Patent and Trademark Office may more consistently apply the commercial success standard. In turn, this would permit small market share inventors to refocus their limited resources on technological innovation rather than marketing.