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What is Nonobvious?

The third and final requirement of patentability is that the invention is "nonobvious." An invention is obvious 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 that the invention was made to a person having ordinary skill in the art to which the subject matter pertains." The term "prior art" includes patents and publications from anywhere in the US It may be interesting to note that the word "art" is used in reference to technology because the US Constitution refers to "the useful Arts."

Determining Obviousness

The invention can be obvious even though it is not disclosed anywhere in the prior art. A three step approach is used to determine obviousness:

• The first step requires determining the scope and content of the prior art. This involves defining what prior art is applicable and relevant to the invention at hand. The relevant, applicable prior art must be that which is either pertinent to the invention or analogous to that which is clearly pertinent.
• The second step involves examining the differences between the invention (specifically the claims) and the prior art.
• The third step involves evaluating the level of ordinary skill in the art. Obviousness is determined from the standpoint of a person of "ordinary skill in the art" and not from the standpoint of a judge, layman, those skilled in the remote arts, or geniuses in the art at hand.

Once these steps are completed, obviousness can be determined.