4 --- INNOVATIONS --- the counterplan allows non-obviousness, the plan doesn’t

Under the proposed sui generis regime for subpatentable innovation, both novelty and utility would remain requirements. However, instead of non-obviousness, the applicant would need to prove the existence of an innovative contribution beyond the prior art. This contribution would presumably be of social value, which could stem from the market response.92 This proposition does not mean that every type of innovative contribution would necessarily be of social value, given that markets sometimes ignore social value.93 However, in those cases where social value is questionable, market demand results only in a liability rule and not in an exclusive property right.

This Article defines “innovative contribution” as a demonstrable technological advancement beyond the prior art that does not rise to the level of non-obviousness. Under current patent law, non-obviousness refers to situations in which, even though an existing single source does not disclose each and every component of the claimed invention, that invention nonetheless results from an unpredictable combination of components disclosed in more than one pre-existing source.94 According to the doctrine of obviousness, the question thus becomes one of assessing whether an expert in the relevant technical field(s) would find a combination of these elements to be obvious.95