Intellectual Property


Obviousness is determined by whether the claimed invention would have been obvious "to a person having ordinary skill in the art to which the claimed invention pertains." 35 U.S.C. § 103.

It also assumes that he knew of the problem solved.

Obviousness has a four-step test to determine it:

  1. The scope and content of the prior art are to be determined.
  2. Differences between the prior art and the claims at issue are to be ascertained.
  3. And the level of ordinary skill in the pertinent art is to be resolved.
  4. Such secondary consideration as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.
    • I.e., if previous attempts failed, unsolved needs took forever, etc. then the solution apparently was not obvious.

Graham v. John Deere Co.