In his blog post titled
“United
States: Patent Law 106: When Is An Invention Obvious And When Is It Patentable?” Ryan L. Marshall discusses Section 103 as it pertains
to the definition of obviousness. It prohibits patents “if the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains." In essence, this defines what obviousness means.
In addition to covering
the definition of obviousness as we had discussed in class, the article
specifically elaborated on evidence that inventors can use to support the
nonobviousness of an invention. Referred to as “secondary considerations”, this
can include:
·
the commercial
success of products or processes arising from the invention,
·
long-felt but
unsolved needs that are met by the invention,
·
failure of others to
solve problems the invention achieves, and
·
unexpected results
and superior properties imparted by practicing the invention.
One or more of these
secondary considerations can be persuasive enough for a patent office or court
to affect their decision.
The article also
discussed the ambiguity of what “ordinary skill in the art” might mean. It
compares “unpredictable” fields such as chemical and cosmetic arts, in which
success is less obvious and people with ordinary skill in the art might not
realize that the product will be successful, to more predictable fields
requiring less skill where obviousness is more commonly determined.
Overall, I find
Marshall’s summary of obviousness to be informative and an appropriate summary
of Section 103. I think it would have been more interesting if he had gone into
greater depth regarding how each of the secondary considerations might play
into patent granting decisions, as I feel that they each might have a different
weight.
I further discuss my thoughts on this topic at the following link:
https://www.youtube.com/watch?v=HiGn_Vw6RCw
I further discuss my thoughts on this topic at the following link:
https://www.youtube.com/watch?v=HiGn_Vw6RCw
Hi Albert,
ReplyDeleteThanks for a great summary of the article! It was really informative. I think these secondary conditions are quite interesting and seem to add another dimension to the obviousness factor. It would be fascinating to see a case in which one of the secondary conditions helped determine a ruling or the future of a patent. Another note I wanted to make is in regards to your second to last paragraph, commenting on "ordinary skill in the art". I definitely agree that this term is rather ambiguous and seems to be left up to the patent examiner or a jury/judge. What is considered ordinary skill in an art? Is it something that's really comparable or does it change from on person to another? After all, you and I may both see the sky is blue, but we might describe them as different types of blue. Anything not completely defined and concrete is in a sense subject to human error.