The logical fallacy at the core of patent law: what does non-obviousness really test?
School of Civil, Aerospace & Design Engineering, University of Bristol, Bristol, BS8 1TR, United Kingdom. Email: m.h.abolkheir@bristol.ac.uk
Mo Abolkheir , The logical fallacy at the core of patent law: what does non-obviousness really test?, Journal of Intellectual Property Law & Practice, 2024;, jpae075, https://doi.org/10.1093/jiplp/jpae075
Patent laws in different jurisdictions have in their core a logical fallacy that generations of patent professionals have kept practising while seemingly being oblivious to its existence. As a philosopher, I believe it is of vital importance to identify this logical fallacy and its effects on the patent system.
For an invention to be patentable, it has to satisfy a number of requirements, the most important two of which are ‘novelty’ and ‘inventive step’, both determined over prior art. Novelty is taken to mean that the invention as a whole does not form part of the state of the art. Inventive step is taken to mean that the core inventive concept is not obvious to a person skilled in the art. The skilled person here is not an actual person but a notional one, who is assumed to have relevant knowledge in the field of the invention and neighbouring fields, and competent but average powers of imagination—put differently, the skilled person possesses no inventive capacity and will not undertake creative thinking. 1
Defining the inventive step in terms of non-obviousness confuses the concept of ‘invention’ with the concept of ‘person’, unwittingly creating a logical fallacy, which I define as the inventio ad hominem fallacy. It is a variation of the well-known argumentum ad hominem fallacy (which translates ‘argument directed to the man’—inventio is Latin for ‘invention’). Here it is:
