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💡intro to intellectual property review

Non-Obviousness

Written by the Fiveable Content Team • Last updated September 2025
Written by the Fiveable Content Team • Last updated September 2025

Definition

Non-obviousness is a critical criterion for patentability that requires an invention to be more than just a trivial or obvious advancement over existing technology. It is a key component in determining the eligibility and validity of a patent application.

5 Must Know Facts For Your Next Test

  1. The non-obviousness requirement is outlined in Section 103 of the U.S. Patent Act, which states that a patent may not be obtained if the differences between the claimed invention and the prior art are such that the invention as a whole would have been obvious to a person having ordinary skill in the art.
  2. The assessment of non-obviousness is a critical step in the patent examination process, as it helps to ensure that only truly innovative and inventive technologies are granted patent protection.
  3. The non-obviousness requirement is distinct from the novelty requirement, as an invention may be novel but still be considered obvious to a person skilled in the art.
  4. Factors considered in the obviousness analysis include the scope and content of the prior art, the level of ordinary skill in the art, the differences between the claimed invention and the prior art, and any objective evidence of non-obviousness, such as commercial success or long-felt but unresolved needs.
  5. The non-obviousness requirement applies to all types of patents, including utility patents, design patents, and plant patents, and is a key consideration in the patenting process.

Review Questions

  • Explain how the non-obviousness requirement is connected to the foundations of patent protection.
    • The non-obviousness requirement is a fundamental aspect of the foundations of patent protection, as it helps to ensure that only truly innovative and inventive technologies are granted patent monopolies. By requiring an invention to be more than just a trivial or obvious advancement over existing technology, the non-obviousness criterion helps to uphold the primary purpose of the patent system, which is to promote the progress of science and the useful arts by incentivizing the creation and disclosure of new and useful inventions.
  • Describe how the non-obviousness requirement relates to the criteria for patenting an invention.
    • The non-obviousness requirement is one of the key criteria for patenting an invention, along with the requirements of novelty, utility, and enablement. An invention must not only be new and useful, but it must also represent a sufficient level of creativity and innovation beyond what would be obvious to a person skilled in the relevant field. The assessment of non-obviousness is a critical step in the patent examination process, as it helps to ensure that only truly inventive technologies are granted patent protection.
  • Analyze how the non-obviousness requirement might impact the patenting process and the types of patents that can be obtained.
    • The non-obviousness requirement can have a significant impact on the patenting process and the types of patents that can be obtained. For an invention to be patentable, it must not only be novel and useful, but it must also represent a sufficient level of inventiveness beyond what would be obvious to a person skilled in the art. This requirement applies to all types of patents, including utility patents, design patents, and plant patents. The assessment of non-obviousness is a crucial step in the patent examination process, and can determine whether an invention is ultimately granted patent protection or deemed ineligible. Inventors and patent applicants must carefully consider the non-obviousness requirement and how it may affect the patentability of their inventions throughout the patenting process.