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Obviousness

Definition

A grounds for rejection under 35 USC § 103 when an invention, while not identical to any single prior artprior artEarlier patents, publications, or products that existed before this patent's filing date. Patent claims must be novel over the prior art.Read more → reference, would have been obvious to a person having ordinary skill in the art at the time of invention. Examiners frequently combine two or more prior art references to make an obviousnessobviousnessA 103 rejection: the invention would have been obvious to a skilled person who combined existing prior art. The most common rejection in patent prosecution.Read more → rejection. It is the single most common rejection in patent prosecutionprosecutionThe whole process of moving a patent application from filing through grant or abandonment at the USPTO.Read more →.

Where this comes up

Patentability AssessmentPatent Eligibility (§101)

Related terms

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Prior art

All publicly available information that existed before a patent's priority date that is relevant to the novelty and non-obviousness of the claimed invention. Prior art includes earlier patents, published patent applications, journal articles, product manuals, conference presentations, and anything that was publicly known or in use. Searching prior art before filing is one of the most valuable steps an inventor can take.

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Anticipation

A legal standard for rejecting a patent claim. If every element of a claim was already disclosed in a single prior art reference — in a patent, article, or product — the claim is "anticipated" and cannot be patented. Anticipation requires a single source to contain every element; if you need two sources, it's an obviousness argument, not anticipation.

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Basis for rejection

The specific legal grounds a patent examiner cites when refusing to allow a claim. Common bases include lack of novelty (35 USC § 102), obviousness (35 USC § 103), failure to fully describe the invention (35 USC § 112), and unpatentable subject matter (35 USC § 101). An office action will state the basis for each rejection, and applicants must address each one in their response.

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Double patenting

A rejection that stops an inventor from getting two patents for the same invention, or for an obvious variation of it. The common obviousness-type double patenting is usually overcome with a terminal disclaimer that ties the two patents' expiration dates together.

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Non-obviousness

One of the three core requirements for a utility patent. An invention is non-obvious if someone with ordinary skill in the relevant field could not have easily combined existing knowledge to arrive at the invention. Non-obviousness (35 USC § 103) is the most frequently litigated and most difficult requirement to satisfy — the line between "obvious" and "not obvious" is contested in almost every patent case.

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Patent

A government-granted right that gives an inventor the exclusive right to prevent others from making, using, selling, or importing a patented invention within the country that granted the patent, for a limited time. A patent does not give the owner the right to practice the invention — only the right to exclude others. The US issues three types: utility, design, and plant patents.

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