If let's say the USPTO deems an invention as obvious, there are steps around it. Below are 15 general arguments against obvioussness with brief descriptions.
Post can be referenced below:
Pressman, David. Patent It Yourself: Your Step-by-step Guide to Filing at the U.S. Patent Office. Berkeley, CA: Nolo, 2012.
- Unexpected results- The result achieved by the invention were unexpected, critical, or unusual
- Assumed unworkability- Those skilled in the art thought the techniques were unworkable until this point in time
- Commercial Success- The invention has attained commercial success
- Purchase Offers- Others (especially accused infringers) have tried to purchase or license the product
- New Principles of Operation- The invention uses a new principle of operation.
- Inability of Competitors- Competitors could not copy the product until the method of reverse engineering was employed or by using details of a publication
- Professional Recognition- The invention has been given an award or recognized in a professional publication.
- Copying by Others- others have chosen to copy or implement the invention
- Misunderstood Reference- "the reference does not teach what the exminer relies upon it as supposedly teaching"
- Inoperative References- Prior-art references that were relied on are inoperative
- Poor References- the prior-art references are vague, conflicting, or old and should be construed narrowly.
- Solution of Long-felt and Unsolved Need- The invention solves a long-felt, long-existing, but unsolved need
- Crowded Art- The invention is classified in a crowded art, so small steps could mean big innovation and edge over competitors.
- No Convincing Reasoning- The examiner did not present sufficient or convincing enough evidence as to why the invention is obvious
- Solution of Long-Felt and Unsolved Needs- the invention solves a long-felt, long-existing, but unmet need
Post can be referenced below:
Pressman, David. Patent It Yourself: Your Step-by-step Guide to Filing at the U.S. Patent Office. Berkeley, CA: Nolo, 2012.
The fact that there is such a long list goes to show how difficult it is to actually determine obviousness. I think it is interesting that a third party can play a key role in this determination. For example, receiving an award and copying by others can validate that the invention is not obvious. I'm afraid that this ability will only cause another loophole for companies to pay a third party to help validate thai we patent.
ReplyDelete