Why the Most Revolutionary Ideas Are Sometimes the Hardest to Patent: KSR and the Obviousness Problem

There's a well-known paradox in the patent world: the most revolutionary ideas often seem, in retrospect, completely obvious. Of course you could order a taxi with a smartphone. Of course you could stream music instead of downloading it. That feeling of inevitability creates a genuine legal problem when you're trying to patent the idea. The governing doctrine is obviousness under 35 U.S.C. § 103 — and since the Supreme Court's 2007 decision in KSR International Co. v. Teleflex Inc., the standard has been significantly broader.

Pre-KSR: The Teaching-Suggestion-Motivation Test

Before KSR, the Federal Circuit required some explicit or implicit teaching, suggestion, or motivation (TSM) in the prior art references to justify combining them. If no reference suggested the combination, the claim survived. Critics argued the TSM test was too rigid — it allowed patentees to protect combinations of known elements simply by ensuring the references didn't explicitly suggest combining them, even when any skilled engineer would recognize the combination as the obvious next step.

KSR: A More Flexible Standard

KSR involved a patent on adjustable gas pedals with an electronic sensor. The Supreme Court reversed unanimously: obvious combinations are not limited to those suggested explicitly in the prior art. A person of ordinary skill is not a robot following a recipe — they are a creative problem-solver with background knowledge and technical training. When a claimed invention is simply a combination of known elements using known methods to achieve predictable results, it is obvious — even without an explicit reference pointing to the combination.

Secondary Considerations of Non-Obviousness

Even if a claimed invention appears obvious under a technical analysis, evidence of the following secondary considerations (established in Graham v. John Deere, 1966) can overcome the presumption:

• Long-felt but unresolved need. If the problem existed for years and no one solved it, that suggests the solution was not obvious.
• Failure of others. If skilled engineers at large companies tried and failed, the inventor's success suggests non-obviousness.
• Unexpected results. If the combination produced results that surprised practitioners — better performance, lower cost, or new capabilities not predicted from the individual components.
• Commercial success. If the invention achieved significant commercial success attributable to the claimed features (not just marketing), it suggests a real market need went unmet — evidence the combination wasn't obvious to those in the field.
• Praise from experts and copying by competitors. Industry recognition suggests practitioners viewed it as a genuine advance, not an obvious next step.

The Lesson for Revolutionary Startups

The most commercially disruptive inventions are not always the most legally protected ones. Durable IP protection comes not from the high-level concept but from the specific technical implementations that make the concept work in practice. The garage invention is the spark; the patent portfolio is built in the details.