If you’re an inventor, you’re likely familiar with the three requirements of patentability: usefulness, novelty, and non-obviousness.

Sounds simple enough, right? Not exactly. In fact, those last two requirements are what make patent law the most stringent branch of IP law, and the key reasons why it’s so difficult to get a patent.

Here’s a closer look at what novel and non-obvious really mean.

Patentability Requirements

The requirements for patentability under 35 U.S.C. 101 sound simple enough, “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” In other words, in order to receive a patent, your invention must be:

  1. Useful
  2. Novel
  3. Non-Obvious

Useful means exactly what you think it means–the invention must have an intended purpose, it must be able to perform its intended function, and a person of ordinary skill must be immediately able to identify the invention’s usefulness.

The other two criteria are much more complicated.


Under the requirement for novelty, or prior art, an inventor is entitled to a patent except in two cases:

  1. The claimed invention was patented, described in a publication, or otherwise available for public use prior to the date of the patent application; OR
  2. The claimed invention was described in a prior patent application by another inventor which was effectively filed before the effective filing date of the current patent application

In plain English, this means the invention must be new. That is, there must not have been any instance of an existing patent, published documents, or public use of your invention before a patent application related to the invention was filed. While there is a bit of a fudge factor in US patent law, if the person who published or used the invention is the inventor filing a subsequent patent application, you’ll immediately lose your rights to pursue a patent application pretty much anywhere outside of the US.

However, this does not prevent you from patenting an improvement on a preexisting invention. Car makers, for example, have long known how to make various car parts. But if they found a way to make a transmission last twice as long by changing its design, that may be a patentable difference–as long as the difference was novel and non-obvious.


The non-obviousness criteria is what makes patent law so different from copyright or trademark law–it’s a much higher bar to clear. In copyright law, for example, there’s a relatively low bar for creativity. The non-obviousness requirement in patents is a whole different ball game.

In copyright law, for instance, you may receive a copyright for a piece of music that’s strikingly similar to a preexisting piece of music as long as there is a distinguishable difference, even if the tune is so simple that any child could master it. Putting aside the fine points of derivative works, if the non-obviousness requirement were applied to music, we would have a lot less copyrighted music, since it would require all new music to convey something no other music before it has conveyed.

35 U.S. Code § 103 states, “A patent for a claimed invention may not be obtained … if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.” In plain English, a patent cannot be claimed if your invention would be obvious to someone with ordinary skill in your field (i.e., someone with a similar skill set and experience as you, the inventor).

This is where things get hairy.

What Makes an Invention Non-Obvious?

First, it is important to note that obviousness is not defined by the basic skills of your average Joe. The standard is determined based on people of typical skill in your field. If your invention is a car part, for example, ordinary skill would be assessed based on your average car part engineer.

Second, it’s important to note that a simple difference from existing products is not sufficient for patentability. The difference must NOT be obvious to someone of ordinary skill in your field to be patentable. In practice, this means that your invention must be a distinguishable departure from inventions already registered with the USPTO, it must not be immediately apparent to people with knowledge of your patent application and, even better, be against conventional wisdom.

Basically, your patent must demonstrate an inventive spark, that flash of genuine creativity that could not have occurred to anyone else in the field.

Unfortunately, non-obviousness is the most subjective element of patent law, which makes it even more of a hassle to navigate since it’s also the highest bar to clear. This is where preparation and strong patent assistance can help you.

Listen, we get it. Patents are hard. But your IP is only as strong as the protection that surrounds it, and when you’re navigating patent law, you need the strongest protection you can get.

That’s where we come in, with expert patent services to guide inventors through all stages of innovation. We take the headache out of IP so that you can make your big idea happen. So if you’re ready to take a smarter approach to IP, get in touch today to learn how we can help.