What do you mean by an obvious invention?
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What do you mean by an obvious invention? Video Transcript
So the question I am going to answer here is how does the Patent Office determine whether something is non-obvious or not. The Patent Office determines whether something is non-obvious or not by putting itself in the position of someone with ordinary skill in the art at the time the invention was made. So at the time of the invention, someone who had ordinary skill in the art, would they look to these prior ideas that were made prior to the invention that we are talking about and look to those two or three things that exist in the past and put them together based on just inspection. Would a reasonable person put those things together, having ordinary skill in the art, is the basic test of how the Patent Office determines obviousness. They do a very close prior art search. The patent office looks for keywords in your claims, in your invention, in your disclosure and tries to find things that are as close as possible to what you have done. To determine obviousness, they find two things that are very close and one thing they found has 90% of the invention and the other one has 85%, but that 85% includes the 10% that was missing in the first one. They might give you a rejection which says your patent is obvious in light of these other two references which are in the same technology area, because one with skill in the art at the time your invention was made would just put them together to do what you want to do with your invention in an obvious way. Now, there are lots of techniques to overcome obviousness rejections. One thing is you could point out something in your claim that is still not shown in the references cited against you. You can argue with the examiner that a reasonable person would not put these things together in the way the examiner has said and you can challenge the basis of their obviousness rejection because perhaps even if the things were put together it still would not work or it still would be missing something that is in your claims. Those are some of the techniques to overcome obviousness rejections and hopefully that answers your questions. The basic question here is how does the Patent Office determine non-obviousness? They determine it by doing a close prior art search and putting themselves in a position of a person with ordinary skill in the art at the time your invention was made.