What "obvious" has been used in the context of not being patentable if it was "[something that] would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains."
There are three key components that this would require:
1) What prior art exists in this subject matter
2) What is the difference between this new invention and the prior art
3) The level of ordinary skill in the pertinent art
Prior art that is assessed are usually those that answers the same problem as the new invention. With this in mind, if the new invention can be two prior art's elements combined to be all of the new material, then it is "obvious."
Things that have allowed the "obvious" factor to be waved off includes:
1) The commercial success of the product
2) What unresolved needs are met by the product
3) The failures of prior creation to solve problems that this one can
4) Unexpected results and superiority of the product
In the end unobviousness is a matter of the validity of the creation based on historical products. Although inventions are built upon developed knowledge, it is important that the invention is taking a leap, not just a side scoot. Having the above points to direct what is analyzed to identify that a creation was obvious and what are components that an unobvious product can achieve helps draw black and white lines in the gray area.
There are three key components that this would require:
1) What prior art exists in this subject matter
2) What is the difference between this new invention and the prior art
3) The level of ordinary skill in the pertinent art
Prior art that is assessed are usually those that answers the same problem as the new invention. With this in mind, if the new invention can be two prior art's elements combined to be all of the new material, then it is "obvious."
Things that have allowed the "obvious" factor to be waved off includes:
1) The commercial success of the product
2) What unresolved needs are met by the product
3) The failures of prior creation to solve problems that this one can
4) Unexpected results and superiority of the product
In the end unobviousness is a matter of the validity of the creation based on historical products. Although inventions are built upon developed knowledge, it is important that the invention is taking a leap, not just a side scoot. Having the above points to direct what is analyzed to identify that a creation was obvious and what are components that an unobvious product can achieve helps draw black and white lines in the gray area.
Yes, it's true that inventions are built on developed knowledge. I think that's why the topic is so subjective. Examiners might have different opinion than what you think, so it creates problems. Also, judges or juries might have different thoughts than examiners, so it really makes it complicated. I was amazed at how many patents were invalidated even though they were approved previously due to obviousness.
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2) What unresolved needs are met by the product
3) The failures of prior creation to solve problems that this one can
4) Unexpected results and superiority of the product
However, these do make a strong case for the petitioner. It paves a way for a person to pass the patent even though the idea might be obvious.
I agree that obviousness is largely subjective, which is why guidelines and regulations are so important. In particular, I think the difference in the innovation and prior art, and the level of ordinary skill in the pertinent art, are the most difficult to gauge. Going forward, as the technology industry continues to develop, I think we'll be seeing more gray zones in terms of obviousness. The challenge is to be prepared to deal with those gray zones, as patent trolls try to create and exploit dangerous patents.
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