35 USC 103. What is Obviousness?

It is Not Always Obvious

35 USC 103 - the obviousness section of the patent codes is often a little baffling to outside observers, and sometimes to insiders. But we need to spend a little time dealing with it because you will find that it is often a major issue as you pursue the steps for getting a patent.

We will start that consideration here in part I.

Sometimes in client discussions, especially when a client has just read a competitors patent, the comment is made - "How can they get a patent for that - it is so obvious." And quite frankly it is obvious - after you have read their patent.

This aspect is important in trying to get your head around obviousness - if you are a good engineer or scientist and you have just read an explanation of an invention - it should become obvious. In fact, the patent is supposed to be written

"in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same...."

You may remember that language from our article on the written description.

So once you have read the patent - the invention can seem obvious to a "person having ordinary skill in the art".

But this simply won't do. If that is the criteria all inventions are obvious.

So how has patent law dealt with this issue? One way is to not allow the use of hindsight - after you have read the complete explanation of the invention. The determination should be done by postulating what was known by a person of ordinary skill in the art when the invention was made. And that means examining the prior art - not the patent in question.

But again - how is it dealt with? The guidelines for obviousness have evolved over the years based on our old friend - case law.

Let's first look at 35 USC 103

35 U.S.C. 103 Conditions for patentability; non-obvious subject matter.

  • (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole 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. Patentability shall not be negatived by the manner in which the invention was made.

How this fairly short paragraph has been interpreted will be discussed further in part II on 35 USC 103.


35 USC 103 - Obviousness

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Mike Ervin

Mike Ervin - Cost Effective Small Business Patent Protection.

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