However, patentability is neither so narrow was the novelty requirement a lone would dictate, nor is its inquiry so relatively clear-cut. If we allow our own intuition to guide us in determining what an invention is or even what it should be, we might all come up with some what different definitions. However, a common theme would likely run through our collective responses—inventiveness should require something more than simply being novel under the strict definitions outlined in the prior chapter. This common theme of requiring more than absolute novelty is reflected in patent law through the non obviousness requirement.
From the original Patent Act of 1790, more than 150 years of American patentlaw jur is prudence passed before a congressional act codified an inventiveness standard that required more than novelty and utility.1 Known officially as the 1952 Patent Act(35 U.S.C. §103) but more generally referred to as the non obviousness requirement,it lays down the framework for federal court non obviousness jurisprudence through the last 55 years and will serve as the starting point for our present discussion. The key part of the non obviousness requirement is codified in 35 U.S.C. §103(a):
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, 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 such subject matter pertains. Patentability should not be negatived by the matter in which the invention was made.Note that 35 U.S.C. §103(a) lays out the overarching framework of the non obviousness requirement. To facilitate a detailed discussion of obviousness as it relates to chemical inventions, we first need to break down this section to better appreciate the finer topological contours of its landscape.
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Patent Law Tutorial
The Patent Process
Prior Art And The Chemical Invention
Basic Requirements Of Patentability: Utility
Basic Requirements Of Patentability: Novelty
Basic Requirements Of Patentability: Nonobviousness
Basic Requirements Of Patentability: Written Description, Enablement, And Best Mode
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