What Constitutes Non-Obvious, Patentable Subject Matter?

In order for a product to be patentable, it must be both novel and non-obvious. When might a patent be refused as obvious? In addition, what can you do to make sure your invention is non-obvious before you apply for a patent? Read on to find out.

The difference between Novelty and Obviousness

As I discussed in my last blog post, patent novelty can be defined as an invention that has never been invented before and is completely new. A non-obvious invention is one that is not a combination of things that have been invented before.

When Might a Patent be Refused as Obvious?

For a patent to be refused as obvious, the combination must be either obvious to one skilled in the art or there must be some teaching in the prior art to suggest the combination. Without these things, the invention is non-obvious.

Ensuring Your Invention is Non-obvious

Before filing your patent application you need to make sure your invention is non-obvious in light of prior art. To do so, you must  closely examine the following factors:

  • The scope and content of related prior art

  • The differences between your invention and the related prior art

  • The level of ordinary skill in the prior and pertinent art

This may seem relatively easy to determine, but unfortunately, the application of these three considerations is quite difficult. A thorough patent search ahead of time will help you to understand what related prior art already exists. Only then can you present your patent application with the solid support it needs to avoid being classified as obvious.

If you need help conducting a thorough patent search or presenting your invention in the best possible light when you are ready to file your patent application, feel free to contact me. I would be happy to assist you in your endeavors.
Kelly G. Swartz is a patent attorney licensed to practice in front of the United States Patent and Trademark Office and in the state of Florida.  She limits her practice to intellectual property law including patent, trademark, copyright, and trade secrets.