Patent Protection: The Role of the Non-Obviousness Requirement

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The non-obviousness requirement is one of the critical and complicated patentability requirements. It is outlined under “35 U.S.C. Section 103” US patent laws. It is very difficult to determine what is obvious and what is not.  As a Patent Analyst, it is one of the most frustrating things to advise my clients whether their invention is obvious or not. This is not due to the lack of knowledge but, it is since the non-obviousness requirement is completely subjective! In some technology domains, nothing seems to be obvious while in some other technology domains, everything seems to be obvious. 

Thus, it is required to know how patent examiners interpret the law of non-obviousness in a particular technology domain. To fulfill the non-obvious requirement for getting a patent, the invention should not be easily perceivable by a person who has expertise in that domain. 

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Patent Protection: The Role of the Non-Obviousness Requirement

As already mentioned, non-obviousness is one of the requirements for the grant of a patent. The other requirements are novelty, utility, or industrial applicability and enabled i.e., the invention should be adequately described. The novelty requirement and non-obviousness requirement work together for ensuring that the patent is granted for genuine inventions only. The novelty requirement is that the invention should be new and should not already exist. The non-obviousness requirement is that invention should be adequately different from the existing arts and their combination.  

For the invention to be non-obvious, the combination of prior arts and functionality that exists within the technology field of the invention should not be “common sense” of one skilled in the art.  

The USPTO sees obviousness as seen by a “person of ordinary skill in the art” (POSITA) which could an engineer or a scientist working in the relevant technical field. In most cases, in obviousness rejection, the USPTO cites two or more prior-art citations which in combination, disclose the invention.  Further, the examiner needs to explain why a POSITA can combine those references to reach the claimed invention.  Common sense can be used for supporting the obvious rejection if it can be explained with adequate reasoning. 

  • To better understand the non-obviousness requirement, let us suppose that you invented a table that has a square top and bottom having four legs.  Also, let’s assume that you are the first person to invent this.  
  • Now, if someone else makes minor changes such as making the top circular instead of a square, and tries to get a patent, the patent office can argue that it is obvious for someone skilled in the art such as a carpenter and thus it will not fulfill the non-obviousness requirement.  
Patent Protection: The Role of the Non-Obviousness Requirement

Now let’s suppose that a new inventor invented a table with pedestal legs that are connected to the center. Also, let us assume that he invented this for the first time. Now, it could be argued that connecting the pedestal legs to a table is not obvious and thus the invention fulfills the non-obviousness requirement of patentability. 

Patent Protection: The Role of the Non-Obviousness Requirement

Non-Obviousness Requirements in US, India, and Europe

Patent Protection: The Role of the Non-Obviousness Requirement
  • USPTO: 

35 U.S.C. Section 103 outlines the conditions for patentability which relates to non-obviousness. It states that: 


A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.” 


The US supreme court explained this requirement inGraham vs. John Deere. To determine whether the invention falls under obviousness or not there are some guidelines such as Determining the scope and content of prior art, analyzing the differences between the prior art and the claimed invention, etc. Also, there is a guideline ascertaining secondary consideration of non-obviousness like in case: others failed to solve a particular problem which is solved by the claimed invention even if it appears to be obvious. 


  • India: 

In India, the nonobviousness or the inventive step is outlined under Section 2(a) of the Patent Act, 1970 which states that: 


“a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.” 


The definition explains that to be patentable an invention should have technical advancement or economic significance in comparison to the prior arts which makes the invention nonobvious to a person skilled in the field. There is further scope of subjectivity in the definition. 


  • Europe: 

In European Patent Convention Article 56 outlines the definition of inventive step” or non-obviousness. The Article states that 

“An invention shall be considered as involving an inventive step if, having regard to state of the art, it is not obvious to a person skilled in the art.” 


The European patent conventions (EPC) do not elaborate on the criteria for determining whether is invention is obvious or not. However, the Boards of Appeal of the European Patent Office solved evolved a problem-solution approach for determining the obviousness of an invention. Thus, in Europe problem-solution approach is used to determine the obviousness of an invention. It includes mainly three steps: choosing the closest prior art, determining the technical problem, and examining the solution. In simple words, it is determined whether the solution proposed by the invention is obvious to a person skilled in the same field as the invention or not. 


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