Inventive step and non-obviousness

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."

The expression "inventive step" is predominantly used in Europe, while the expression "non-obviousness" is predominantly used in United States patent law. The expression "inventiveness" is sometimes used as well. Although the basic principle is roughly the same, the assessment of the inventive step and non-obviousness varies from one country to another. For instance, the practice of the European Patent Office (EPO) differs from the practice in the United Kingdom.

Rationale

The purpose of the inventive step, or non-obviousness, requirement is to avoid granting patents for inventions which only follow from "normal product design and development", in order to eventually achieve a proper balance between the incentives provided by the patent system, namely encouraging innovation, and the social cost of the patent system, namely conferring temporary monopolies. The non-obviousness bar, hence, is a measure of what we, as a society, accept as a valuable discovery. Additional reasons for the non-obviousness requirement comprise providing incentives for fundamental research rather than for "incremental improvements", and to minimize the "proliferation of economically insignificant patents that are expensive to search and to license". Although, all countries with actively functional patent systems currently have a requirement for inventive step, the need for such doctrine has been questioned. For example, "substantial novelty" has been proposed as an alternative approach.