Non-Obviousness in a Nutshell
Obviousness may be one of the most important considerations in determining whether or not an invention is granted a patent.
It also may be one of the most difficult to both explain and determine.
Taken directly from the bible of patent examining known as the MPEP:
35 U.S.C. 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 section 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.
Clear as mud, right?
So, what does this language actually mean in terms of whether or not an invention is deemed patentable?
There are a lot of components in that language, but I am going to focus on the one that is most pertinent:
“…if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious…”
At its most basic, if there are two products out in the world already (prior art) that would have been easily combined (obvious) to “create” your claimed invention, you are not entitled to a patent.
Similarly, the concept of obviousness can be applied to a predictable variation (difference) on an established invention or patent (prior art) which would create an “new” version of that invention (as a whole).
For example, let’s say you notice that all cell phones have a power button on the right side of the phone since the majority of people are right-handed. If you came up with the “idea” for a phone with a button on the left side, you’d most likely not granted a patent because moving a button that has the exact same functionality to the other side of a phone would have been “obvious”.
It’s a pretty subjective approach to providing discernment on whether or not one is granted a patent.
However, since this is how the USPTO goes about making such a determination, it is of benefit to an inventor before filing for a patent to include such consideration in a prior art search.
Fortunately, there are guidelines available to assist one in making an obviousness determination — also within the patent bible — of which one can find here in MPEP Section 2143.
They are a good barometer that anyone seeking a patent should consider when determining whether they have something worth filing a patent application for.
It is a stumbling block that many “pro se” inventors come upon all too late in the patent process.
