Can you patent things that seem “obvious”?

It is reasonably rare for a client or potential client to have come up with some groundbreaking or breakthrough technology that is completely different and vastly improved compared with what is already known.  It is much more common to see step-change improvements or combinations of known technologies or ideas, and hear, all too often (from the inventors), that “surely this can’t be patented, as it is so ‘obvious’”.  So, can you patent things that seem obvious?

“Obvious”, in the world of patent law and practice, is quite an old and colloquial term used to describe something that is not sufficiently inventive to warrant patent protection.  Not only is it, quite frankly, a bit derogatory, it is also misleading, because its meaning in common parlance and its meaning within the patent system are often two different things. 

Hindsight

Of course things may seem obvious once they have been invented, but that assessment is made with hindsight, which is not allowed when assessing “inventive step” (which is the legal term for the colloquial “non-obviousness”).  Instead, we have to go back to before you invented the new product, and assess inventive step from that standpoint.

The first two questions

The first question almost always ask is, “Why will customers want this product over the nearest thing currently available?”  Not only does this allow us to focus on the USP of the product, but will usually yield some technical advantage.  Then, I ask “What feature(s) of the product contribute to that USP or technical advantage?”  And that will, usually, give me one or more unique (or ‘novel’) features not present in whatever is already known.

Patentability in the UK

Except in the case of a few specific technical fields, the only two requirements for something to be patentable in the UK are that there is at least one novel technical feature compared with what has been done before, and that that/those novel technical feature(s) involve this so-called ‘inventive step’.  The novelty requirement can usually be established relatively simply through my second question above, which leaves us with the ‘inventive step’. 

Assessing Inventive Step

Starting with the basics, in many cases, ‘inventive step’ means nothing more than that it is something more than an obvious workshop modification of what has been done before.  So, the Examiner has to view the invention from the position as it was before you filed your patent application, and assess whether a nominal non-inventive “person skilled in the art” (e.g. a workshop technician) could have come up with the invention simply by making a workshop modification. If this objection is raised, in most cases, we can characterize the existence of an inventive step by the technical advantage established through the first of the two questions above.

Sometimes, however, we may have to delve a little deeper: why do you think someone hasn’t done this before or combined these two technologies or ideas?  Were there any technical difficulties or things you had to do to make the idea work?  Does your product solve a problem that hasn’t been solved before?  More often than not, these additional questions will “tease out” our inventive step.

Important twists to the tale

Two important points to remember are:

  1. According to well-known UK case law, a “scintilla” of inventiveness can be enough to make something patentable, so be careful not to dismiss a relative small change or improvement as not patentable.
  2. Sometimes, the “identification of the problem” (solved by the invention) can form part of the inventive step, even if the solution can be considered obvious.  So, if you are the first person to solve a particular problem, then no matter what the solution is, it may be patentable.

These are just some of the ways to establish an inventive step or “non-obviousness”, so the answer to the question ‘Can you patent things that seem “obvious”? is, quite possibly, ‘yes, and the moral of the story is, if your business would benefit from being able to prevent others from making or selling the same thing, then it is worth exploring with a Chartered Patent Attorney whether or not your invention is patentable.

Final Note

Don’t forget that if you want to consider filing a UK patent application, then you must not disclose your invention to anyone, except in strict confidence.  If you need to talk to someone, for example, a potential licensee, investor or manufacturer, always use a Non Disclosure Agreement (NDA) to preserve your rights.  Basic NDA templates and more information can be found here.

Need Help?

We hope you have found this basic summary useful.  If you need help to work out if your new product might be patentable, or if you have any other IP questions, we are happy to offer a confidential initial consultation, which is free of charge and obligation.  Please book your free initial consultation by clicking the link below:

https://calendly.com/strachan-ip-a-fresh-view-of-intellectual-property/30min

or by calling 07714 797135 or emailing vicki.strachan@strachanip.co.uk

or you can contact us through our website: https://strachanip.co.uk/contact/

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