The truth about “obviousness” in patent law

Do you think your invention is too “obvious” to be patentable? You’re not alone. I so often hear inventors dismiss their inventions, or elements of them, as “obvious” and, therefore, unpatentable that I feel moved to write again about this often misunderstood (or misinterpreted) term. So here’s the truth about “obviousness” in patent law.

The truth about “obviousness” in patent law

In order to be patentable, an invention must be novel (i.e. have at least one novel technical feature over what has been done before) and involve a so-called ‘inventive step’. The UK Patent Office provides a rather laborious explanation here, if you can stay awake long enough to read it.

“Obviousness” is a colloquial (and rather derogatory) term often used to describe a lack of this inventive step. However, the meaning of “obviousness” in the wonderful world of patent law is often quite different to its colloquial, everyday meaning, and there is case law going back over a hundred years that tries to give us all some clue as to the nature of this difference.

The use of hindsight is forbidden when assessing inventive step

One of the most difficult concepts for inventors (and sometimes even Examiners) to get their heads around is that inventive step (or “obviousness”) must be assessed without the benefit of hindsight. It’s all too easy to dismiss something as “obvious” once it has been invented, but Patent Office Examiners are not allowed to think like that. Instead, they are expected to assume the position from the nearest prior art (both in substance and time) and decide, based only on that, whether or not the invention would have been obvious at that time to a person skilled in the art (i.e. the fictitious person who knows everything about the relevant technical field but has no inventive ability at all). It’s not as easy as it sounds, and takes some experience to get used to, but that’s the law.

For the rest of us though, it opens up a whole new set of categories of invention that, were it not for this rule, might otherwise be dismissed as “obvious” and therefore unpatentable.

Combination Inventions

One of the most common of these arises when an invention is, in essence, a combination of two known concepts or technologies. I regularly get innovators waving their hands dismissively saying that feature a of an invention is known and feature b of the same invention is known, so an invention that combines features a and b must be obvious. Quite simply, that is not necessarily so. And often isn’t – especially if the new combination results in a technical advantage not previously envisaged; or, if an element of feature a (or b) has had to be altered in some way for the two things to work together.

The problem solved may be (at lest part of) the invention

Patents relate to inventions, and an invention is, on the whole, a solution to a technical problem. But what if nobody has ever tried to solve that problem before? In other words, what if you are the first person to identify that a particular problem exists. UK patent case law says that the identification of a new problem can contribute to the inventive step of an invention, even if the solution itself might be considered to be “obvious”.

A scintilla of inventiveness may be enough

It is also worth mentioning here that, in order to be patentable, an invention need not be (and rarely is) some breakthrough technology that will change the face and lives of humanity forever. Quite the opposite, in fact. Many (if not most) patentable inventions tend to be small improvements to known technologies and, turning again to our age-old case law, as one judge put it: a “scintilla” of inventiveness may be sufficient to justify patent protection.

The moral of the story

The moral of the story is a simple one. If it would benefit your business to be able to prevent your competitors from being able to copy your invention, then even if you think it’s “obvious”, don’t dismiss it as such without consulting a Chartered Patent Attorney, because you never know….it may not be as “obvious” as you thought!

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