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12 Lewis & Clark L. Rev. 343 (2008)
A Timing Approach to Patentability

handle is hein.journals/lewclr12 and id is 365 raw text is: A TIMING APPROACH TO PATENTABILITY by John F Duffy' Patent law's obviousness doctrine, which bars patents for obvious innovations, is generally understood as trying to exclude from patentability those innovations that would have been created and disclosed even without the inducement of patent rights. An ideal test of obviousness would both serve that overarching policy goal and be sufficiently definite and clear that the doctrine could be applied with consistency. This Article demonstrates that a timing approach to patentability can achieve those twin objectives. The approach is based on the insight that the free and open competition to innovate Present before patenting will reliably generate all obvious innovations quickly once the market and technological conditions make the innovation both valuable and obvious. Obvious innovations will thus arise soon after the technological or market conditions change to make the innovation more valuable or easier to achieve. Because changes in technology and market needs are relatively easy to observe, the timing of those changes can provide relatively clear and definite evidence of obviousness. This timing theory is remarkably good not only in explaining the results of the judicial decisions but also in predicting the existence of previously overlooked timing evidence. Most notably, a thorough review of the record in the seminal case of Hotchkiss v. Greenwood strongly suggests that the innovation there was an obvious response to a very recent technological development. A timing approach therefore reveals an important unifying pattern in the case law and connects that pattern to a fundamental relationship between the patent system and competition to innovate. I. IN TR O D U CTIO N ................................................................................ 344 II. TIMING CONSIDERATIONS AND THE CASE LAW ....................... 347 A. Recent Supply-Side Change ............................................................... 347 B. Recent Demand-Side Change ............................................................ 352 C. Cases of Stasis .................................................................................. 356 D . W rongly D ecided Cases ..................................................................... 357 III. C A V E A T S .............................................................................................. 362 A. Imperfect Competition to Innovate ..................................................... 362 1. Secret Prior Art and the Supreme Court's Error in Cook C h em ical ................................................................................. 362 2. Arbitrary Design Choices and Low-Value Patents ........................ 364 B. Special Timing Considerations for Improvement Patents .................... 365 Professor of Law and Oswald Symister Colclough Research Professor of Law, The George Washington University Law School.

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