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Patent Nonobviousness

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How Do I Know if My Invention Is Obvious or Not?

If a person of ordinary skill in the field of your invention would not have been able to think of or make the invention by looking at the available public information, your invention will probably be considered to be nonobvious.

What Sorts of Public Information Will the USPTO Look at to See if My Invention is Obvious?

The USPTO considers all relevant public information that was available before your invention was made. The relevance of the information does not have to be directly related to the industry of your invention. For example, if you invented a type of briefcase, you would not only look at information and knowledge of briefcases, but also clasps, hinges, and other things that have similar qualities and problems as the briefcase.

What Does It Mean to Have Ordinary Skill?

A person having ordinary skill in the art of the invention is someone who deals frequently with the issues the invention tries to solve. The inventor¿s skill is not relevant to what the ordinary skill is. For example, if an inventor is new to the field or not familiar with its issues, it might take tremendous insight for him to create an invention that was obvious to a person of ordinary skill in the art. Several factors are used to determine the ordinary level of skill in the field, including:

  • What types of problems encountered
  • How quickly innovations are made
  • The education level of the average worker

What Other Factors Can Prove My Invention was Nonobvious?

Courts have considered several other factors when deciding whether or not an invention was obvious.

  • Commercial success - if an invention is very popular and preferred over other products, this may mean that the invention was something others had not thought of
  • Long-felt but unsolved need - if there was a need for something that could not be met, then an invention that filled that need would clearly be nonobvious
  • Copying - if others resort to copying your invention because they cannot come up with their own solution your invention is probably nonobvious
  • Licensing - if others would rather pay money to use your invention than try to solve the problem themselves, the invention was probably nonobvious
  • Adoption by the industry - if the industry adopts your invention, this indicates that it may be better than others and nonobvious

Do I Need a Patent Attorney?

If you are considering filing for a patent on your invention and are concerned about the requirement of nonobviousness, you may want to contact an intellectual property lawyer to clarify some of the complex issues related to the patent process.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 06-26-2014 04:14 PM PDT

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