According to The Business of Patents, several different approaches are mentioned with regard to non-obviousness. In European countries, they call it "inventive step". Though the interpretation of such equivalent requirement varies from country to country. I would like to briefly summarize them:
European Patent Office
- Identify the relevant prior art
- Identify the technical problem the claimed invention solved in relevant field
- For a skilled person in the field, examine whether the technical problem is obvious to be solved
UK approach
- Identify inventive concept in the claimed invention
- Identify common general knowledge in the art by a normally skilled but unimaginative person
- Identify the difference between prior art and the claimed invention
- Examine whether the above difference would've been obvious to the skilled but unimaginative person
The author argued that he prefers the EPO approach, since it starts with defining set of prior art and further narrows down the scope of the problem. I personally feel like USPTO could have adopted EPO's approach with the objective evidence of obviousness or non-obviousness exception. Engineering-minded (EPO approach) approach is considered more specific. Though it is true that whether inventive step or non-obviousness, they all inevitably involve some degrees of subjectivity.
No comments:
Post a Comment