> based on an 19th century notion of invention I think this is one reason the courts have also not had much luck finding any useful & principled theories of in

> based on an 19th century notion of invention I think this is one reason the courts have also not had much luck finding any useful & principled theories of invention to apply. The law assumes a kind of classical "eureka!" theory of invention, where there is normal work and then the occasional Invention, which few scholars these days think is how technological advances actually happen. So if the courts were to try to read a scholarly book on either the history or current state of technological advances and try to make use of its concepts (courts sometimes do that kind of thing, if they can find something that will help them make a principled distinction) there would just be a big mismatch in basic assumptions and framework. So they don't, and instead are stuck with trying to make the best of a kind of cobbled-together theory of what constitutes an invention vs. a non-invention. And at this point, absent Congress significantly rewriting patent law, there isn't really much they can do except continue that process of accretion, by doing line-drawing in the gray areas of the existing case law when an opportunity arises.