Hmm, Well That’s Different: Non-Obviousness
This is the 3rd of 5 posts on patenting your ideas. This episode: Non-obviousness.
This is a fun one. Many times, people come to me with ideas which are slightly better than something out there and ask “Is this patentable”. Of course, after novelty (can you say that what you are doing is totally new), the next gate that you have to get through is non-obviousness. My definition of that is simply “can it be said that your idea is simply an extension of another idea?” Here are some examples of obviousnesss, maybe you can spot the pattern:
- Making something larger or smaller. For a real life example, look at the iPhone and the iPad. The iPad, while some call it innovative – is it patentable under the non-obviousness criteria? Not in my mind, since its simply, really, just a larger iPhone. It shares most of its components with the iPhone, and apart from the size, and the lack of cellular voice capability, its basically the same device
- Swapping one thing out for another which could conceivably be used for that purpose, without adding additional differentiating features. Replace a cars steering wheel with a joystick? Or handlebars? Or foot pedals? Probably misses the non-obvious boat. Using brainwaves? That’s not obvious. Maybe that’s patentable
- Taking the same thing which works in one space, and doing it in an other. May be a great idea, or a good business, but patentable? For example, Uber for Flowers? Yo for Pizza? AirBnb for cooking? This one is a little trickier, because in many cases you do have to change the model a lot in order for it it work, and in some cases, you will add that new component, while you are changing the model, which will make it non-obviousness. For example, let’s say “Yo for Pizza” – this is obvious, because Yo is a communications tool between people, and one of those people just happens to now be a pizza place. Or Magic, that service that gets you anything you want, within reason, via text. May be a great business idea, but patentable based on non-obviousness, not in my opinion. Say Uber for Flowers, is delivering flowers on demand from hobbyist florists on demand – the only difference is that the delivery is from a non-florist. In fact, a lot of the sharing economy, gig economy businesses are likely not patentable in their business model, however the algorithms that run them may be. We’ll cover that in the final post on “visibility”
Is your idea an obvious extension of something already out there? There are plenty of patentable ideas which are mashups of more than one idea, which is great. If, however, you are simply taking an idea which is already out there, and simply adding a small variation which the original inventor may not have thought of the first time around, well that probably fails the non-obvious test.
The inventive step and non-obviousness reflect a general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive—i.e., non-obvious—in order to be patented. In other words, “[the] nonobviousness principle asks whether the invention is an adequate distance beyond or above the state of the art.”
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