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 that 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 obviousness; maybe you can spot the pattern:
- Making something larger or smaller. For a real-life example, look at the iPhone and the iPad. While some call the iPad innovative, is it patentable under the non-obviousness criteria? Not in my mind, since it’s simple, 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, it’s basically the same device.
- Swapping one thing out for another could conceivably be used for that purpose without adding additional differentiating features. Replace a car’s steering wheel with a joystick? Or handlebars? Or foot pedals? Probably misses the non-obvious boat. Using brainwaves? That’s not s. Maybe that’s patentable
- Taking the same thing which works in one space and doing it in another. It 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 for it to work, and in some cases, you will add that new component while changing the model, which will make it non-obviousness. For example, let’s say “Yo for Pizza” – this is s, 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. It 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, in many of the sharing economies, 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 already out there and adding a small variation that 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.”