Story of Graham v. John Deere Company, The: Patent Law’s Evolving Standard of Creativity (Patents)

Intellectual Property and Patents

Article Snapshot


John Duffy


Intellectual Property Stories, Jane Ginsburg & Rochelle Cooper Dreyfuss, eds., New York: Foundation Press, 2006


This article asks which inventions should be protected by patents.

Policy Relevance

When technological change is rapid, courts should stop patents on obvious ideas from being granted.

Main Points

  • Patent law protects only very creative work and new ideas. The 1966 Supreme Court case Graham v. John Deere Company set out basic guidelines in this area.

  • It makes no sense to let someone patent the idea of making buttons out of wood instead of bone. Button makers would think of such an obvious idea without a patent, and granting a patent could mean higher prices on wooden buttons for no reason.

  • In Graham v. John Deere, the Supreme Court explained that patent law required courts to ask whether an ordinary person skilled in the art would think the idea was obvious, if he was familiar with existing patents; this test makes sense because it is objective.

  • Earlier, the Supreme Court had asked whether the idea showed a “a flash of creative genius,” but this not a good test, because courts will vary widely in their outcomes.

  • The Supreme Court and the Federal Circuit Court of Appeals, have missed two key points in understanding what is obvious:
    • New ideas that are only new because they involve a new technology, should not be patentable due to obviousness.  An example is’s patent on “one-click” Internet shopping; this is obvious, and the only reason it was not invented before is that Internet shopping is new.
    • New ideas that owe most of their novelty to someone else’s invention, should not be patentable, due to obviousness.
  • In societies that change slowly, few inventions are obvious, and the courts do not need to insist that only very creative ideas be patented. Now that technological change is rapid, the nonobviousness test is very important.

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