What Is The Non-obviousness Requirement Of Patentability And Why It Matters

Regardless of scientific or conceptual brilliance, not every invention is eligible for a patent. In order to qualify for the protection granted by a patent, a number of requirements must be met. For example, the invention must not be too similar to an existing patent and must have some utility or useful purpose. Another essential criterion, which directly determines the eligibility of a patent, is that the invention must not be obvious in its conceptualization. This is what patent lawyers and agents refer to as the ‘Non-Obviousness criteria’, and this is the sole focus of our post.

Determining Non-Obviousness

To determine how obvious (or non-obvious) your invention is in its making, a person of skill in the art pertaining to your invention attempts to think through or create the invention based on the information that is already available in the public domain.

For those unsure about what the 'person of skill’ means within the context of examination of an invention, it refers to a fictional person who would work in the industry to which the invention applies and would have a knowledge base consistent with those individuals and information in the public domain.

The Importance of Non-Obviousness

There is a reason why non-obviousness is such an essential criterion. Aside from the basic fact that an inventor must think beyond the ordinary to come up with a groundbreaking invention, the problem with an ‘obvious invention’ is that it is counterproductive to the inventor, the patent examiners, and society. The establishment of a benchmark ensures that only inventions of a certain quality may garner an issued patent. This non-obvious criteria means that many viable inventions are ineligible for patent protection. A lower benchmark, for instance, could burden the existing infrastructure that oversees patent examination, creating a bigger backlog of cases than what already exists. Listed below are complementary results of the non-obviousness criterion:

The Resolution of Unresolved Need

An invention that is considered 'obvious’ may be unique but it is considered to lack the ingenuity required for the granting of a patent. If an inventor creates something that addresses a previously unfilled societal need or something that garners significant praise in the marketplace, it may be an indication of non-obviousness.

The Scope of Industrial Use

We can now begin to appreciate the intertwined nature of these criteria. An obvious invention is unlikely to create an appreciable improvement over what is already in use in the industry. It takes a non-obvious invention, with the capacity to simplify or cheapen existing industrial processes, to make a real commercial difference. Inventions that lead to simplification of products and processes or reduce costs often achieve greater commercial success in the free market.

When applying for a patent, every inventor must strive to understand the manner in which an examiner will scrutinize your patent application. Consult with a patent lawyer or agent for help with the patent application process. Contact us to speak with a member of our team that specializes in Canadian IP law.