Also known as:nonobviousness · non obviousness · obviousness · § 103
Written by attorneys · grounded in primary & secondary sources — see below
A condition for patentability requiring that the differences between the claimed invention and the prior art would not have been obvious to a person of ordinary skill in the art at the time the invention was made.
Sources & Authorities
How it applies
Common Examples
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Rotted Dock Boards Create Liability
Carlos walks across a marina dock operated by Harbor Marine. The boards are visibly weathered and Harbor Marine knew they were rotted after prior flexing but applied only a temporary patch. Carlos steps on the section, the boards collapse, and he is injured. Because the possessor knew of the hidden structural risk and should have anticipated that invitees would use the area without detecting the collapse danger, the marina is liable under the known-or-obvious-danger rule.
Plow Shank Combination Held Obvious
A farmer invents a plow with an improved shank that combines two prior-art features already used separately in the field. The PTO rejects the application. The claimed advance is obvious because the differences from existing plow designs would have been apparent to a person of ordinary skill in agricultural equipment at the time.
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Restatements
Casebooks
Course Outlines
Study Supplements
Graham v. John Deere Co. of Kansas City383 U.S. 1, 5 (1966)
Hedging Method Fails Non-Obviousness
An applicant seeks a patent on a method of hedging risk in commodities trading by using a computer to calculate and execute offsetting transactions. The claimed process is rejected because it applies a well-known economic practice through conventional computer implementation that would have been obvious to a skilled financial-software artisan.
Bilski v. Kappos561 U.S. 593 (2010)
Crystal Growth Process Deemed Obvious
A company develops a method for growing larger crystals of a known chemical compound using standard temperature and pressure adjustments already taught in the literature. The patent is denied because the process would have been obvious to a chemist of ordinary skill familiar with conventional crystal-growth techniques.
Kewanee Oil Co. v. Bicron Corp.416 U.S. 470 (1974)
Boat Hull Design Found Obvious
A manufacturer patents a boat hull with a particular molding technique that merely rearranges known fiberglass lay-up steps. The patent is invalidated because the design would have been obvious to a naval architect of ordinary skill who was aware of existing molding practices in the industry.
Bonito Boats, Inc. v. Thunder Craft Boats, Inc.489 U.S. 141, 162 (1989)
Financial Software Patent Upheld
A firm patents a data-processing system that transforms financial data into a share-price index through a series of programmed calculations. The patent is sustained because the specific transformation produces a useful, concrete, and tangible result that would not have been obvious to a person of ordinary skill in financial software at the time.
State Street Bank and Trust Co. v. Signature Financial Group, Inc.149 F.3d 1368 (Fed. Cir. 1998)
Common questions
Frequently Asked
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What statutory section sets out the non-obviousness requirement?+
Section 103 of the Patent Act provides that a patent may not be obtained 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.
How does non-obviousness differ from novelty?+
Novelty under section 102 asks whether the invention is identical to a single prior-art reference. Non-obviousness under section 103 asks whether the differences from the prior art, even if not identical, would have been obvious to a skilled artisan.
What role does the person of ordinary skill play in the analysis?+
The hypothetical person of ordinary skill in the art is the reference point for determining obviousness. The inquiry compares the claimed invention against the prior art from that person's perspective at the time of the invention.
447 U.S. 303Property
…antibiotic. [^maj-5]: This case does not involve the other "conditions and requirements" of the patent laws, such as novelty and nonobviousness. 35 U. S. C. §§ 102, 103. [^maj-6]: This same language was employed by P. J. Federico, a principal draftsman of the 1952 recodification, in his testimony regarding that legislation:…