Unobviousness

F. Requirement #4: Unobviousness We’re now entering what’s probably the most misunderstood and difficult-to-understand, yet most important, issue in patent law—that is, is your invention unobvious? Let’s start with a “common misconception.” Common Misconception: If your invention is different from the prior art, you’re entitled to get a patent on it. Fact: Under Section 103 of the patent laws, no matter how different your invention is, you’re not entitled to a patent on it unless its difference(s) over the prior art is considered “unobvious” by the PTO or the courts. Because Section 103 is the heart of all patent laws, we are reproducing the first paragraph—the essence of the section—here under the AIA: 35 USC 103 Conditions for patentability; non-obvious subject matter. “A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in Sec. 102, 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. Patentability shall not be negated by the manner in which the invention was made.” Most of the time a patentability search will produce one or more prior-art references that show devices similar to your invention, or that show several, but not all, of the physical features of your invention. That is, you will find that your invention has one or more features or differences that aren’t shown in any one prior-art reference. However, even though your invention is physically different from such prior art (that is, it clears Section 102 as Section 103 states), this isn’t enough to qualify for a patent. To obtain a patent, the physical (or use) differences must be substantial and significant. The legal term from Section 103 for such a difference is that it must not be “obvious” or, commonly, it must be “unobvious” or “nonobvious.” That is, the differences between your invention and the prior art must not be obvious to one with ordinary skill in the “art” or field of the invention. Because this concept is so important, let’s examine it in detail.