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[T]he so-called patentability requirement was invented by Americans, in particular Justices of U.S. Supreme Court in famous case Hotchkiss v. Greenwood in 1850. -Friedrich-Karl Beier1 This is a story about innovation-legal innovation. At beginning of nineteenth century, all countries having patent systems generally required patentable inventions to be both new and useful. Those two requirements have now been joined by a third: Patentable inventions must be new, useful, and nonobvious. This is not unique to law of United States. Every nation in World Trade Organization now applies these three standards in awarding patents.2 Though nonobviousness is most recently developed of three requirements for obtaining a patent, it is now generally considered to be defining feature of invention. Indeed, in United States, what is today called nonobviousness was for about a century known as invention doctrine,3 and in many countries, doctrine is still known as inventive step4 or simply patentability requirement.5 The doctrine is widely understood to be so fundamental to proper functioning of patent system that it can be accurately described as final gatekeeper of patent system,6 condition of patentability,7 and the heart of patent law.8 This Article traces how this defining doctrine of invention was itself invented by world legal culture. For scholars of intellectual property law, this history provides significant insights into proper functioning and continued of doctrine. For example, one great puzzle posed by this history is how early patent systems could possibly have functioned without any doctrine similar to what is now seen as a central and fundamental pillar of innovation law. To a great extent, emerging modern theory of nonobviousness helps to solve this puzzle: Modern theory predicts that nonobviousness requirement plays its most important role where society and technology are experiencing rapid change. In a more static society, theory predicts that obviousness doctrine would be less important. Thus, this Article shows that history and theory are mutually reinforcing, for nonobviousness requirement did not develop until rapid technological and social changes of nineteenth century demanded it. The case study presented in this Article is also of much more general interest. Change is endemic in law. Law review articles are filled with tales of development or evolution of law.9 Each new judicial decision, each new piece of legislation, even each new legal argument crafted by ordinary lawyers brings some small increment of novelty and change to law. All lawyers, judges, and legislators know this to be true, and it has become a shibboleth that law must change, grow, and develop as social conditions do. Yet despite omnipresent recognition of legal change, only a few scholars have devoted substantial attention to processes by which legal precedents develop and change over a substantial period of time. The existing scholarly treatments of legal change are invariably primitive. Legal change is treated as if it is something that just happens-that follows inexorably from emergence of social needs and changed social conditions. Legal precedent is analogized to fungible capital stock,10 sequential chapters in a chain novel,11 or Darwinian evolution.12 The historical rise of nonobviousness standard reveals more depth and texture in process of legal change, and it introduces a new elementthe possibility of true innovation in law. True innovation here means not any change (like a change in social values or a mere change in fashion) but rather a change that is an intellectual advance and is objectively better in accomplishing purposes of law. Although process of legal innovation appears to be based largely on trial and error, intellectual justifications appear essential for continued and ultimate success of innovation. …
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