I've discussed about eligibility weeks ago, but that is only one out of the five patent requirements. This week we are assigned to look into the non-obviousness requirement.
IPWatchdog author Gene Quinn posted an article to talk about patentability overview, which describes the subject matter in layman's term. I am no good at interpreting very official description from USPTO. Thus, I'd like to walk through the non-obviousness requirement by looking at different sources and interpret it myself. If you feel like you have second thoughts on this post, please feel free to give me feedback by commenting below. Thanks!
To reiterate, there are five requirements to determine whether a claimed invention is valid (aka patentable).
- patent eligible
- useful
- novel
- non-obvious
- adequately described
If we already know a claimed invention is patent eligible, useful, and novel, why do we still need to determine its non-obviousness? Well, what if any skilled expert in the relevant prior art can easily identify such invention with obvious added factor?
"A patent may not be obtained if it contains only obvious differences from prior art"1. I'll take a really silly example to demonstrate this fact. Say a LED display attached to a microfiber cleaning cloth, this silly "invention" wouldn't be considered patentable because it is so obvious regardless of the fact that it is also not inventive.
The obviousness is ruled based on four inquiries
- The scope and content of the prior art
- The difference between the claimed invention and the prior art
- The level of ordinary skill in the prior art
- Objective evidence of obviousness or non-obviousness
The fourth factor is "secondary considerations" that is usually used to argue non-obviousness for defendant or applicant. I'd like to further address the fourth factor as it seems to be vague.
An applicant can supply evidence for secondary considerations if the invention is:
- commercial success
- long-felt but unsolved needs
- failure of others
This will be considered the exception to the non-obviousness requirement if any of the above three factors is identified. Since "obvious" evidence is more convincing to simply debate on the literal explanation of obviousness.
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