When Obviousness Isn’t Obvious: How 103 Undermines Follow-On Innovation*

When Obviousness Isn’t Obvious: How 103 Undermines Follow-On Innovation*

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Obviousness doctrine is intended to police the line between genuine innovation and routine variation. In practice, however, the application of Section 103 has increasingly drifted away from economic and technological reality—particularly in industries where progress is incremental, expensive, and risk-laden. The result is a growing disconnect between how innovation actually occurs and how follow-on inventions are evaluated for patentability.

This panel examines how modern obviousness analysis is undermining follow-on innovation by discounting real-world development challenges, unpredictability, and investment risk. Panelists will explore how hindsight bias, overreliance on generalized motivations to combine, and the erosion of secondary considerations have raised the bar for patentability in ways that penalize iterative improvement.

The discussion will focus on life sciences, advanced technologies, and other sectors where follow-on innovation drives therapeutic advancement, product refinement, and market competition. Panelists will assess how current Section 103 practices at the USPTO, PTAB, and courts affect R&D incentives, portfolio strategy, and investment decisions—and why the loss of protection for follow-on inventions carries systemic consequences.

Survey

https://www.surveymonkey.com/r/When-Obviousness-Is-Not-Obvious

Materials

1. Stop Using PTAB Invalidation Rates as a Metric for Measuring Patent Quality
2. En Banc CAFC Overrules Design Patent Obviousness Test in Light of KSR
3. Responding to Obviousness Rejections in Light of the USPTO’s New Guidance
4. USPTO Issues Updated Obviousness Guidance Tracing 15 Years of Case Law Following KSR
5. Obviousness Evolution: From PHOSITA to THOSITA to AI