[5] Additional reasons for the non-obviousness requirement are providing incentives for fundamental research rather than for "incremental improvements", and minimizing the "proliferation of economically insignificant patents that are expensive to search and to license".
[14] Also, many countries have, in addition to patents, utility models, which have a lower (or none) requirement for non-obviousness in return for a shorter monopoly term duration.
The availability of utility model protection minimizes for inventors, developers and manufacturers the risk associated with the uncertainty of non-obviousness analysis (litigation) outcome (see below).
Under such a system, drawing the line between inventive(all) and obvious (nothing) is ambiguous, as numerous lawsuits with changing outcomes on appeal illustrate (e.g. Sanofi-Aventis GmbH v. Glenmark Pharmaceuticals, 748 F. 3d 1354 (Fed.
Also, unique to the United States is the possibility to introduce as the evidence of non/obviousness facts, discovered after filing the patent application in question.
"A standard that is clear and easy to apply consistently will mark where the non-obviousness bar exactly rests, providing society as a whole, and lawmakers in particular, with a benchmark to gauge the patent system's efficacy.
"[5] Mr. Cecil D. Quillen Jr., Senior Advisor to Putnam, Hayes and Bartlett, Inc., and former General Counsel to the Eastman-Kodak Company, concurs: "The PTO should apply the same standard followed in the courts so that patentees receive a patent that is worthy of respect rather than merely an invitation to the roulette wheel of litigation.
Courts of the United Kingdom have adopted a general framework to assist in approaching (not answering) the fundamental statutory test.
In Windsurfing International Inc. v Tabur Marine (GB) Ltd. [1985] RPC 59 the Court of Appeal suggested the following framework: This test has been slightly reworked in the more recent Court of Appeal case Pozzoli Spa v BDMO SA & Anor [2007] EWCA Civ 588 (22 June 2007):[21] In Schlumberger Holdings Ltd versus Electromagnetic Geoservices AS [2010] EWCA Civ 819 (28 July 2010), the Court of Appeal clarified that the fictional skilled addressee (which may be a skilled team) used for determining inventive step can vary from the one used for determining claim construction or sufficiency.
Since the PHOSITA standard turned to be too ambiguous in practice, the U.S. Supreme Court provided later two more useful approaches, which currently control the practical analysis of non-obviousness by patent examiners and courts: Graham et al. v. John Deere Co. of Kansas City et al., 383 U.S. 1 (1966) gives guidelines of what is "non-obvious", and KSR v. Teleflex (2006) gives guidelines of what is "obvious".