What does it mean when an invention is obvious?

What does it mean when an invention is obvious?

To get a patent for your invention in the United States one of the requirements is that your invention must not be obvious. This requirement is found in 35 U.S.C. § 103. The section essentially requires a comparison of the subject matter sought to be patented and the prior art, to determine whether or not the subject matter of the patent as a whole would have been obvious, at the time of the invention, to a person having ordinary skill in the art. This section of code was clarified by the United States Supreme Court in Graham v. John Deere nearly 50 years ago, and remains good law in the United States.

The Supreme Court held that the following factors must be considered to resolve the issue of obviousness:

  • the scope and content of the prior art;
  • the differences between the claimed invention and the prior art; and
  • the level of ordinary skill in the art.

In addition, the Court mentioned “secondary considerations” which could serve as evidence of nonobviousness. Those considerations are:

  • commercial success;
  • long felt but unsolved needs; and
  • failure of others.

The Court recognized that these questions would likely need to be answered on a case-by-case basis, so the question of obviousness is very fact intensive.

If you seek to be granted a patent on you invention it is best to hire an attorney to advise you. An attorney can do a patent search for you and give you an objective opinion on whether your invention is obvious in light of the prior art.