The Non-obviousness Requirement In The Chilean Patent Law: A Critical Assessment

Resumen

The conventional rationale for granting patent protection is based upon the
belief that patents are an important element in order to incentivize technological and
productive innovation. The patent system sets out a series of requirements that inventions
must meet. These conditions on patentability purport to ensure that patents serve as a real
incentive –and not an obstacle– for innovation. The patent regime thus protects inventions
that, in general, are useful, new, and non-obvious in light of the prior art. Improper
application of these requirements, however, has created a dilemma for patent law. In
particular, the PTO has issued myriad IP rights of dubious validity. This problem seems to
be particularly acute in the case of the nonobviousness condition. Indeed, both academics
and judges have struggled to identify a principled method for assessing whether claimed
inventions meet this requirement. This paper seeks to critically analyze the criteria set out
by the Chilean Patent Offi ce in order to estimate whether a certain invention is indeed
nonobvious.