Nonobviousness, arguably the most nebulous of the four patentability criteria, is assessed by the Patent Office in view of the prior art and common general knowledge at filing time. This view is cast from the perspective of a hypothetical technician skilled in the field of the invention, but not particularly inventive, who is presumed to be fully conversant with the state of the art in the field of the invention (i.e. knowledgeable of all relevant prior art) and familiar with related fields.
If it is believed that such a person would arrive at the solution the invention teaches readily and without undue experimentation, were (s)he to seek such a solution, then the invention is deemed obvious. In practice, it is the Patent Office examiner who is the hypothetical technician from whose point of view the assessment is made. Ultimately, this judgment is subjective. It is as hard to predict as it is to render, but it follows certain guidelines, as follows.
Generally, if one or more elements of the invention as claimed cannot be found in any similar form in the prior art and is not part of common knowledge then nonobviousness (and, of course, novelty) may be assumed to exist. Otherwise, if the claimed elements of the invention are all found, in at least a similar form, in the prior art from the field of the invention or from related fields, or(partly or wholly) in the domain of common knowledge, then whether or not nonobviousness exists depends on two factors: the perceived degree of similarity of the previously disclosed elements to those claimed, and in the case different elements of the invention are found in different instances of prior art (and, possibly, the domain of common knowledge) on whether the combination of the previously disclosed or known elements is considered obvious or suggested in the prior art as written on patent my invention through InventHelp article.
Obviousness has been ruled to exist in the following cases (adapted from the Manual of Patent Office Practice): substitution of materials; change in form, dimensions, or proportionality, unless a new mode of operation or function results; omission of one or more parts with a corresponding limitation in functionality, unless that omission causes a new mode of operation; duplication of one or more parts, unless a new mode of operation results. Substitution of a part by an equivalent one, unless such substitution results in a new function, new mode of operation, or new use. The use of an old process, machine or manufacture for a new but analogous purpose. The combination of parts of known technology, with resulting functionality that is merely the sum of functionality of the parts combined.
A pivotal concept to the issue of patentability, as discussed above, is that of prior art. Both novelty and nonobviousness are predicated on exactly what has or has not been disclosed in the prior art. Clearly then, before launching a patent application, one must thoroughly familiarize oneself with the relevant prior art to be able to ascertain the novelty of one’s invention and assess its nonobviousness. Fortunately, there are patenting agencies, such as patent invention InventHelp, that could get all this done. The means to this end is a process called “prior art search”.
