To get a patent for an invention, your invention must be novel, nonobvious, and useful. Being novel just means you have made an invention nobody has done before. Being useful just means your invention needs to accomplish something. Being nonobvious, however, is the hardest hurdle. Your invention must be nonobvious to obtain a patent. What does that mean?<\/p>\r\n\r\n\r\n\r\n
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Nonobvious means you must make an invention that isn\u2019t just a small change from existing inventions. For example, if you take a regular toaster that toasts 2 pieces of bread, and you invent a toaster that toasts 10 pieces of bread. Do you feel you deserve a patent? The Patent Office won\u2019t think so. The Patent Office will argue that the change you made isn\u2019t that big of a change. They will argue that your change of making a 2 slotted toaster into a 10 slotted toaster is an \u201cobvious\u201d change to the traditional 2 slotted toaster. The Patent Office will say, \u201cWe don\u2019t think you deserve a patent because your change is pretty obvious.\u201d Now, you can certainly disagree and argue back. For example, you could argue, if true, that to make a toaster capable of having 10 slots to toast bread, you had to make a bunch of changes to the internal components of the toaster that are not present in a traditional 2 slotted toaster. Maybe different slots toast at different temperatures and for different times, requiring temperature detection and temperature barriers between the slots. You would argue that these are nonobvious improvements to the traditional toaster which warrant you obtaining a patent. However, if you simply added more slots to a traditional toaster and there are no major changes to the internal workings, you will likely get a rejection from the US Patent Office because your improvements aren\u2019t nonobvious.<\/p>\r\n\r\n\r\n\r\n
To obtain a patent, you must convince the Patent Office that your invention is nonobvious. But, nonobvious to who? Your invention must be nonobvious to a \u201cperson of ordinary skill in the art\u201d. This comes from US patent law which states that you cannot<\/span> get a patent if:<\/p>\r\n\r\n\r\n\r\n \u201cthe differences between [your] invention and the [existing inventions] are such that [your] invention as a whole would have been obvious<\/strong> \u2026 to a person having ordinary skill in the art<\/strong> to which [your] \u2026 invention pertains.\u201d<\/p>\r\n35 USC \u00a7103<\/cite><\/blockquote>\r\n\r\n\r\n\r\n Let\u2019s break down the law:<\/p>\r\n\r\n\r\n\r\n \u201cA person\u201d<\/p>\r\n<\/td>\r\n \u201chaving ordinary skill\u201d \u00a0<\/p>\r\n<\/td>\r\n \u201cin the art\u201d \u00a0<\/p>\r\n<\/td>\r\n \u201cto which [your] \u2026 invention pertains\u201d<\/p>\r\n<\/td>\r\n So in layman terms, you cannot<\/span> get a patent if your invention is obvious<\/span> to an average person in the industry of your invention. Therefore, when flipped around, you can<\/span> get a patent if your invention is nonobvious<\/span> to an average person in the industry of your invention.<\/p>\r\n\r\n\r\n\r\n For example, if you made a new pain killer drug, most people you show the ingredients to would likely say they would not have thought of what you did. But it doesn\u2019t matter what most people would say, it matters what people in the drug industry would say. If those who work in the drug making industry would say it is obvious to make the drug you made, then the Patent Office will argue that your new pain killer drug is not nonobvious to the people in the industry and argue that you don\u2019t deserve a patent.<\/p>\r\n\r\n\r\n\r\n Now, the Patent Office doesn\u2019t actually go and poll people in the industry of your invention to see if they think your invention is nonobvious. However, patent examiners who work at the Patent Office are from different backgrounds and some of them might have previously worked in a product industry. Your patent application will be looked at by a patent examiner who the Patent Office says has ordinary skill in the industry of your invention. However, that examiner is just one person with one opinion. Even if that patent examiner thinks your invention is obvious, you can always argue back that your invention is nonobvious. This is why the patent application process is a legal process. There is no right or wrong and it requires arguing of two differing opinions. You\u2019ll argue that your invention is nonobvious and the Patent Office will argue that your invention is obvious.<\/p>\r\n\r\n\r\n\r\n As the inventor, make your invention as nonobvious as possible when viewed by those in the product’s industry. Then, work with a patent attorney or agent to argue why you are nonobvious when compared to existing inventions.<\/p>\r\n\r\n\r\n\r\n\r\n
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\r\n Law<\/strong><\/td>\r\n Layman Terms<\/strong><\/td>\r\n<\/tr>\r\n \r\n \r\n A person<\/td>\r\n<\/tr>\r\n \r\n \r\n Having just normal average skill, not extraordinary skill, and not below average skill<\/td>\r\n<\/tr>\r\n \r\n \r\n In the industry<\/td>\r\n<\/tr>\r\n \r\n \r\n Of your invention<\/td>\r\n<\/tr>\r\n<\/tbody>\r\n<\/table>\r\n<\/figure>\r\n\r\n\r\n\r\n