Assignment 6A: Defining Obviousness

Hi everyone,

This week I will be taking a deep-dive into background, definition, and applications of obviousness. Obviousness is typically the most difficult obstacle to overcome for would-be inventors, as the law makes this condition seem difficult to understand, subjective, and even arbitrary.

The concept of and requirement for obviousness came about as a result of the United States Supreme Court case of Graham v. John Deere. The trial determined a 4-step process for analyzing the level of obviousness for a patent:

1. Determine the scope and content of the prior art
2. Ascertain the differences between the claimed invention and the prior art
3. Resolve the level of ordinary skill in the pertinent art
4. Consider objective indicia of non-obviousness

As you can tell, the definition/process of obviousness is not so clear. After looking through the internet, I found a suitable and easier-to-understand definition:

"With obviousness we are asking whether there is any combination of prior art references that when put together would be the invention in question. In other words, could an ordinary mechanic create your invention or was there some kind of non-obvious innovation."

 A more refined set of criteria (if even one of these criteria is met, then the patent is considered obvious) to determine obviousness is the following:

1. If the invention is a product of combining prior art elements and yields predictable results, the invention is obvious.
2. If the invention is created through a substitution of one known element for another to obtain predictable results, the invention is obvious.
3. If the invention is achieved by using a known technique to improve a similar device in the same way, the invention is obvious.
4. If the invention is created by applying a known improvement technique in a way that would yield predictable results, the invention is obvious.
5. If the invention is achieved from choosing a finite number of identifiable, predictable solutions that have a reasonable expectation to succeed, the invention is obvious.
6. If known work prompts variations based on design incentives or market forces and the variations are predictable to one of skill in the art, the invention is obvious.