inventive step

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Inventive Step

Problem-solution approach

The Examining Divisions, the Opposition Divisions, and the Boards of Appeal of the EPOalmost always apply the "problem-solution approach" in order to decide whether an invention

involves an inventive step. The approach consists in:

1. identifying the closest prior art, the most relevant prior art;2. determining the objective technical problem, that is, determining, in the view of the

closest prior art, the technical problem which the claimed invention addresses andsuccessfully solves; and

3. examining whetheror not the claimed solution to the objective technical problem isobvious for the skilled person in view of the state of the art in general.

This last step is conducted according to the "could-would approach". Pursuant to this approach,

the question to address in order to assess whether the invention involves an inventive step is thefollowing (the question is the climax of the problem-solution approach):

Is there any teaching in the prior art, as a whole, that would, not simply could, haveprompted the skilled person, faced with the objective technical problem formulated when

considering the technical features not disclosed by the closest prior art, to modify or

adapt said closest prior art while taking account of that teaching [the teaching of the prior

art, not just the teaching of the closest prior art], thereby arriving at something fallingwithin the terms of the claims, and thus achieving what the invention achieves?

If the skilled person would have been prompted to modify the closest prior art in such a way as

to arrive at something falling within the terms of the claims, then the invention does not involve

an inventive step.

The point is not whether the skilled person could have arrived at the invention by adapting or

modifying the closest prior art, but whether he would have done so because the prior art incited

him to do so in the hope of solving the objective technical problem or in expectation of someimprovement or advantage. This must have been the case for the skilled person before the filing

orpriority date valid for the claim under examination.

For a discussion of the inventive step test for "software patents" and "computer-implementedinventions" under the EPO case law, see also "Inventive step test" section in Software patents

under the EPC.

United Kingdom
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A set of rules regarding the approach taken by the United Kingdom courts was laid out by the

Court of Appeal in Windsurfing International Inc. v Tabur Marine (GB) Ltd. [1985] RPC 59, in

determining the requirements for inventive step:

1. Identifying the inventive concept embodied in the patent;2.

Imputing to a normally skilled but unimaginative addressee what was common generalknowledge in the art at the priority date;

3. Identifying the differences if any between the matter cited and the alleged invention; and4. Deciding whether those differences, viewed without any knowledge of the alleged

invention, constituted steps which would have been obvious to the skilled man or whether

they required any degree of invention.

This test has been slightly reworked in the more recent Court of Appeal case Pozzoli Spa v

BDMO SA & Anor [2007] EWCA Civ 588 (22 June 2007)[4]

1. (a) Identify the notional "person skilled in the art", (b) Identify the relevant commongeneral knowledge of that person;2. Identify the inventive concept of the claim in question or if that cannot readily be done,construe it;

3. Identify what, if any, differences exist between the matter cited as forming part of the"state of the art" and the inventive concept of the claim or the claim as construed;

4. Viewed without any knowledge of the alleged invention as claimed, do those differencesconstitute steps which would have been obvious to the person skilled in the art or do they

require any degree of invention?

In Schlumberger Holdings Ltd v Electromagnetic Geoservices AS [2010] EWCA Civ 819 (28

July 2010) the Court of Appeal clarified that the fictional skilled addressee (which may be a

skilled team) used for determining inventive step can vary from the one used for determiningclaim construction or sufficiency.

United States

"Non-obviousness" is the term used in USpatent law to describe one of the requirements that an

invention must meet to qualify for patentability, codified in 35 U.S.C. 103. One of the mainrequirements of patentability is that the invention being patented is not obvious, meaning that a

"person having ordinary skill in the art" would not know how to solve the problem at which the

invention is directed by using exactly the same mechanism. The Graham Factors, shown below,

are used by courts to determine if the claimed invention is nonobvious.

Teaching-suggestion-motivation (TSM) test

Further, the combination of previously known elements can be considered obvious. As stated by

Winner Int'l Royalty Corp. v. Wang, 202 F.3d. 1340, 1348 (Fed. Cir., 2000), there must be asuggestion or teaching in the prior art to combine elements shown in the prior art in order to find

a patent obvious. Thus, in general the critical inquiry is whether there is something in the prior
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art to suggest the desirability, and thus the obvious nature, of the combination of previously

known elements.

This requirement is generally referred to as the "teaching-suggestion-motivation" (TSM) test and

serves to prevent against hindsight bias (In re Kahn, Fed. Cir. 2006). As almost all inventions are

some combination of known elements, the TSM test requires a patent examiner (or accusedinfringer) to show that some suggestion or motivation exists to combine known elements to form

a claimed invention. Some critics of the TSM test have claimed that the test requires evidence of

an explicit teaching or suggestion to make a particular modification to the prior art, but theFederal circuit has made clear that the motivation may be implicit, and may be provided for

example by an advantage resulting from the modification. In other words, an explicit prior art

teaching or suggestion to make a particular modification is sufficient, but not required for a

finding of obviousness.

The TSM test has been the subject of much criticism. The U.S. Supreme Court addressed the

issue inKSR v. Teleflex(2006). The unanimous decision, rendered on April 30, 2007, overturned

a decision of the Federal Circuit and held that it "analyzed the issue in a narrow, rigid mannerinconsistent with 103 and our precedents," referring to the Federal Circuit's application of the

TSM test.[5]

The court held that, while the ideas behind the TSM test and the Graham analysiswere not necessarily inconsistent, the true test of nonobviousness is the Graham analysis.

However, according to formerChief Judge Michel and current Chief Judge Rader, the TSM test

remains a part of the Federal Circuit's analysis, though it is applied mindful of the decision in

KSR.[6]

A KSR-style obviousness analysis was used inPerfect Web Technologies, Inc. v.InfoUSA, Inc.to invalidate a patent due to the obvious nature of the asserted claims.

Graham factors

The factors a court will look at when determining obviousness in the United States were outlinedby the Supreme Court inGraham et al. v. John Deere Co. of Kansas City et al., 383 U.S. 1(1966) and are commonly referred to as the "Graham factors". The court held that obviousness

should be determined by looking at

1. the scope and content of the prior art;2. the level of ordinary skill in the art;3. the differences between the claimed invention and the prior art; and4. objective evidence of nonobviousness.

In addition, the court outlined examples of factors that show "objective evidence ofnonobviousness". They are:

1. commercial success;2. long-felt but unsolved needs; and3. failure of others.

Other courts have considered additional factors as well. SeeEnvironmental Designs, Ltd. v.

Union Oil Co. of Cal., 713 F.2d 693, 697-98, 218 USPQ 865, 869 (Fed. Cir. 1983) (considering
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skepticism or disbelief before the invention as an indicator of nonobviousness);Allen Archery,

Inc. v. Browning Mfg. Co., 819 F.2d 1087, 1092, 2 USPQ2d 1490, 1493 (Fed. Cir. 1987)

(considering copying, praise, unexpected results, and industry acceptance as indicators ofnonobviousness);Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 679, 7 USPQ2d 1315,

1319 (Fed. Cir. 1988) (considering copying as an indicator of nonobviousness).

Historical development

The grant of a U.S. patent has always required more than simple novelty as illustrated byThomas Jefferson's 1813 letter

[7]explaining that changing material to "chain, rope, or leather"

was insufficient for patentability. However, the Supreme Court's pronouncement inHotchkiss v.

Greenwoodis generally regarded as the Court's first attempt to explain the theory.

The Court's decision inGreat Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp.is

often considered the high-water mark of the application of obviousness doctrine as the Courtreversed the patent grant of a commercially successful mechanical device as merely a "gadget."

AfterGreat Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., the U.S. Congresspassed the Patent Act of 1952, in part, to reduce the impact of nonobviousness on patentability

and to eliminate the flash of genius test.

The Supreme Court would later interpret the Patent Act of 1952 inGraham v. John Deere Co.,United States v. Adams, and Calmar v. Cook Chemical.

[8]

Canada

Main article: Novelty and non-obviousness in Canadian patent law

The requirement for non-obviousness is codified under section 28.3 of the Patent Act (R.S.C.,1985, c. P-4).[9]

28.3 The subject-matter defined by a claim in an application for a patent in

Canada must be subject-matter that would not have been obvious on the claim

date to a person skilled in the art or science to which it pertains, having regard to(a) information disclosed more than one year before the filing date by the

applicant, or by a person who obtained knowledge, directly or indirectly, from the

applicant in such a manner that the information became available to the public inCanada or elsewhere; and

(b) information disclosed before the claim date by a person not mentioned in

paragraph (a) in such a manner that the information became available to thepublic in Canada or elsewhere.

The Supreme Court of Canada affirmed the test for non-obviousness laid out in Windsurfing

International Inc. v. Tabur Marine (Great Britain) Ltd.[10]

inApotex Inc. v. Sanofi-SynthelaboCanada Inc.:
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1. Identify the notional person skilled in the art and identify the relevant common generalknowledge of that person;

2. Identify the inventive concept of the claim in question or if that cannot readily be done,construe it;

3. Identify what, if any, differences exist between the matter cited as forming part of thestate of the art and the inventive concept of the claim or the claim as construed;4. Viewed without any knowledge of the alleged invention as claimed, do those differencesconstitute steps which would have been obvious to the person skilled in the art or do they

require any degree of invention?

Read

https://e-courses.epo.org/wbts/inventive_step/index.html

For a patent to issue, the invention must not only be new and useful, it must be nonobvious.Unlike the concepts of novelty or utility, you probably dont have an immediate, intuitive notion

of what nonobviousness really is. First of all, isnt it difficult to define something by what itisnt? And nonobvious to whom?

Its not surprising if the nonobvious requirement seems the most opaque. Of the three hallmark

qualities that inventions must have to be patentable, nonobviousness has been the most debatedand least clear-cut, and it has had the rockiest history.

The to whom question is the easiest to tackle. An invention must be nonobvious to a person ofordinary skill in the art. Thats not your standard Joe Schmoe out shoveling snow, but it is your

standard Joe Schmoe who is reasonably well-trained in the fieldnot necessarily the Einstein of

quantum physics either, but maybe a quantum physics professor.

The first question is a little trickier. Lets start with looking at how the need for nonobviousness

came about in the first place.

The requirement for nonobviousness was not in the original patent statute, drafted in 1790. It was

new and useful, plain and simple. Eventually, though, in the 1850 case Hotchkiss v.Greenwood, the courts decided that those terms were not stringent enough; the Supreme Court

stated it well in Atlantic Works v. Brady in 1882:

It was never the object of patent laws to grant a monopoly for every trifling device, every

shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled

mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creationof exclusive privileges tends rather to obstruct than to stimulate invention.

It was clear that inventions needed something more, some je ne sais quois, to warrant the powerof patent protection. But what, exactly, was it that set apart trifling devices from meatier,

worthier ones? After the 1850 decision, a vague, subjective, almost mystical attempt at defining

the je ne sais quois developed: a standard or level of invention that a device must meet inorder to be patent-worthy. The trouble was that this standard of invention was a defining quality
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that was itself undefinable, and it caused confusion for patent seekers until the Patent Statute of

1952.

A group of patent attorneys got together and proposed that the real question shouldnt be whether

the subject up for a patent met some ill-defined standard of invention, but rather whether or not it

was nonobvious to a person of ordinary skill in the art. Relevant questions toward decidingnonobviousness, like how long did the need that this device fills exist? and how many others

had tried to find a way to solve the problem? centered on facts surrounding the invention and

the inventor rather than subjective notions like inventive steps or creative leaps ora flash ofgenius.

The requirement for nonobviousness was added to patent law contained in Title 35 of the UnitedStates Code in 1952, and in the intervening 50 years the courts have interpreted it in a host of

patent cases.

inventive step

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