To get a patent for an invention, your invention must be novel, nonobvious, and useful. Being novel just means you have made an invention nobody has done before. Being useful just means your invention needs to accomplish something. Being nonobvious, however, is the hardest hurdle. Your invention must be nonobvious to obtain a patent. What does that mean?
Make Nonobvious Improvements
Nonobvious means you must make an invention that isn’t just a small change from existing inventions. For example, if you take a regular toaster that toasts 2 pieces of bread, and you invent a toaster that toasts 10 pieces of bread. Do you feel you deserve a patent? The Patent Office won’t think so. The Patent Office will argue that the change you made isn’t that big of a change. They will argue that your change of making a 2 slotted toaster into a 10 slotted toaster is an “obvious” change to the traditional 2 slotted toaster. The Patent Office will say, “We don’t think you deserve a patent because your change is pretty obvious.” Now, you can certainly disagree and argue back. For example, you could argue, if true, that to make a toaster capable of having 10 slots to toast bread, you had to make a bunch of changes to the internal components of the toaster that are not present in a traditional 2 slotted toaster. Maybe different slots toast at different temperatures and for different times, requiring temperature detection and temperature barriers between the slots. You would argue that these are nonobvious improvements to the traditional toaster which warrant you obtaining a patent. However, if you simply added more slots to a traditional toaster and there are no major changes to the internal workings, you will likely get a rejection from the US Patent Office because your improvements aren’t nonobvious.
Be Nonobvious to a Person of Ordinary Skill in the Art
To obtain a patent, you must convince the Patent Office that your invention is nonobvious. But, nonobvious to who? Your invention must be nonobvious to a “person of ordinary skill in the art”. This comes from US patent law which states that you cannot get a patent if:
“the differences between [your] invention and the [existing inventions] are such that [your] invention as a whole would have been obvious … to a person having ordinary skill in the art to which [your] … invention pertains.”35 USC §103
Let’s break down the law:
“having ordinary skill”
|Having just normal average skill, not extraordinary skill, and not below average skill|
“in the art”
|In the industry|
“to which [your] … invention pertains”
|Of your invention|
So in layman terms, you cannot get a patent if your invention is obvious to an average person in the industry of your invention. Therefore, when flipped around, you can get a patent if your invention is nonobvious to an average person in the industry of your invention.
For example, if you made a new pain killer drug, most people you show the ingredients to would likely say they would not have thought of what you did. But it doesn’t matter what most people would say, it matters what people in the drug industry would say. If those who work in the drug making industry would say it is obvious to make the drug you made, then the Patent Office will argue that your new pain killer drug is not nonobvious to the people in the industry and argue that you don’t deserve a patent.
Now, the Patent Office doesn’t actually go and poll people in the industry of your invention to see if they think your invention is nonobvious. However, patent examiners who work at the Patent Office are from different backgrounds and some of them might have previously worked in a product industry. Your patent application will be looked at by a patent examiner who the Patent Office says has ordinary skill in the industry of your invention. However, that examiner is just one person with one opinion. Even if that patent examiner thinks your invention is obvious, you can always argue back that your invention is nonobvious. This is why the patent application process is a legal process. There is no right or wrong and it requires arguing of two differing opinions. You’ll argue that your invention is nonobvious and the Patent Office will argue that your invention is obvious.
As the inventor, make your invention as nonobvious as possible when viewed by those in the product’s industry. Then, work with a patent attorney or agent to argue why you are nonobvious when compared to existing inventions.