Inventiveness & Obviousness
To be patentable an invention must be inventive. Sometimes this is re-written as not being obvious.
Something which is clear for all, or at least people in the relevant field, to see is unlikely to be inventive. It would be said to be obvious. No skill nor effort would be needed to come up with the invention.
For instance, deciding to add a bottle cap opener to a wine bottle cork remover would be an obvious addition to a tool for opening bottles of alcoholic beverages. It can also be argued that it is merely combining two obvious things for convenience, and each functions in their normal manner.
But what if someone worked out a way so that the same head on the tool could remove both corks and bottle caps by a new functioning mechanism. This is no longer merely combining two known tools onto one handle. This is now creating something new which overall functions differently from either known tool. Now we have invention.
Determining inventiveness is not easy. Many things fall on a borderline between being inventive and obvious, though just because something looks obvious afterwards is not a valid test. The question is whether it was obvious at the time it was invented.
The United States has questions to be asked for determining whether something is obvious. Combining these with guidelines from other countries we perform the following test:
It is generally best to allow your patent attorney to assess inventiveness and patentability. If there is a question as to inventiveness they will advise you of this, and how it will affect any applications to patent invention. It is not unusual for attorneys to have file submissions during examination addressing inventiveness and obviousness objections.
To be patentable an invention must be inventive. Sometimes this is re-written as not being obvious.
Something which is clear for all, or at least people in the relevant field, to see is unlikely to be inventive. It would be said to be obvious. No skill nor effort would be needed to come up with the invention.
For instance, deciding to add a bottle cap opener to a wine bottle cork remover would be an obvious addition to a tool for opening bottles of alcoholic beverages. It can also be argued that it is merely combining two obvious things for convenience, and each functions in their normal manner.
But what if someone worked out a way so that the same head on the tool could remove both corks and bottle caps by a new functioning mechanism. This is no longer merely combining two known tools onto one handle. This is now creating something new which overall functions differently from either known tool. Now we have invention.
Determining inventiveness is not easy. Many things fall on a borderline between being inventive and obvious, though just because something looks obvious afterwards is not a valid test. The question is whether it was obvious at the time it was invented.
The United States has questions to be asked for determining whether something is obvious. Combining these with guidelines from other countries we perform the following test:
- if it solves a problem it possibly is inventive.
- if it solves a problem for which there is a real need to solve, it likely is inventive.
- if others have failed to solve the problem that you have, it most likely is inventive.
- if your solution is very different to what others have proposed, it probably is inventive.
- if it took time, effort, and development to make it work, it most likely is inventive.
- if it is useful and provides a useful solution it probably is inventive.
- if it provides real advantage, it possibly is inventive.
- if it provides manufacturing advantages, or enables something new to be done, it probably is inventive.
- if it is very different from the prior art (what is known in the public domain), it possibly is inventive.
It is generally best to allow your patent attorney to assess inventiveness and patentability. If there is a question as to inventiveness they will advise you of this, and how it will affect any applications to patent invention. It is not unusual for attorneys to have file submissions during examination addressing inventiveness and obviousness objections.