Non-obviousness (patent)
| Patentability Requirements |
|---|
| -Novelty |
| -Non-obviousness |
| -Inventive step |
| -Utility |
| -Industrial applicability |
| Topics |
| -Prior art |
| -Person skilled in the art |
| edit box |
Non-obviousness is term used in US patent law to describe one of the three requirements that an invention must meet to qualify for patentability. One of the main requirements of patentability is that the invention being patented is not obvious, meaning that a "person having ordinary skill in the art" would not know how to solve the problem at which the invention is directed by using exactly the same mechanism.
For example, in a recent case, Smuckers attempted to patent peanut butter and jelly sandwiches with crimped edges instead of crusts. This invention was challenged in court, and the court ruled that the crimping method, which was essentially the same as that used for ravioli, was an obvious means of protecting the contents of the sandwich. The patent was therefore voided for failing the nonobviousness test.
Inventive step is a similar test under European Patent law.
Graham factors
The factors a Court will look at when determining obviousness and non-obviousness in the United States were outlined by the Supreme Court in Graham et al. v. John Deere Co. of Kansas City et al., 383 U.S. 1 (1966) and are commonly referred to as the "Graham factors". The Court held that obviousness should be determined by looking at
- the scope and content of the prior art;
- the level of ordinary skill in the prior art;
- the differences between the claimed invention and the prior art; and
- objective evidence of nonobviousness.
In addition, the Court outlined factors that show "objective evidence of nonobviousness". They are:
- commercial success;
- long-felt but unsolved needs; and
- failure of others.
Other courts have considered additional factors as well. See Environmental Designs, Ltd. v. Union Oil Co. of Cal., 713 F.2d 693, 697-98, 218 USPQ 865, 869 (Fed. Cir. 1983) (considering skepticism or disbelief before the invention as an indicator of nonobviousness); Allen Archery, Inc. v. Browning Mfg. Co., 819 F.2d 1087, 1092, 2 USPQ2d 1490, 1493 (Fed. Cir. 1987) (considering copying, praise, unexpected results, and industry acceptance as indicators of nonobviousness); Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 679, 7 USPQ2d 1315, 1319 (Fed. Cir. 1988) (considering copying as an indicator of nonobviousness).