For an Invention to be Granted or Registered as a Patent, an Inventive Step/Non-Obviousness is one of the criteria that has to be fulfilled by the Invention for qualifying as a Patentable subject matter. Almost every Patent Office examines the applied Patent Application based on the Inventive step or Non-Obviousness. Some Patent offices use the term Inventive Step while others use Non-Obviousness. However, the yardstick for determining inventive step/non-obviousness slightly differs country wise.


The Inventive step in patent is an indispensable criterion for judging an Invention for granting of a Patent.

The philosophy behind the Inventive step is that an Invention should not be a mere collection and repackaging of existing information. In an Invention, the Inventive step involves technical advancement as compared to the existing knowledge, it should not be based on an abstract idea. For example: if an Invention for which a patent is sought is solving a problem by providing a solution which may be similar to a solution conceived by a person skilled in the art who is working in the same field by applying his/her acquired technical knowledge or by going through the existing literature, in that case the Invention will not be considered as an Inventive in nature, since the solution to the problem is obvious to the person skilled in the art. However, if the invented solution is better than the existing solutions in terms of efficacy or accuracy etc. then such a solution may be deemed to have an inventive step.

Please find below the yardstick for determining non-obviousness:

  • According to Indian Patent Law, "inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
  • According to European Patent Law, an invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art. If the state of the art also includes documents within the meaning of Article 54, paragraph 3, these documents shall not be considered in deciding whether there has been an inventive step.
  • According to US Patent Law, a patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, 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. Patentability shall not be negated by the manner in which the invention was made.


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All the major Patent Offices examine the applied Patent application on the basis of Inventive step as one of the criteria for granting of a Patent. Examination of filed Patent application is a tedious task and the Patent office applies different methods for the examination of Inventive step. For example, Indian Patent Office may identify the presence of technical advance as compared to the existing knowledge or having economic significance or both, European Patent office may apply Could-Would approach, USPTO may apply the principles developed through landmark judgments such as Teaching Suggestion Motivation (TSM) test, depending upon the matter disclosed in the Patent Application

Patent rights create substantial benefits for the inventor; these should not be handed to everyone who uses his/her knowledge and training to draw only basic conclusions from existing knowledge. Patent Rights are a reward for the execution of exceptional ideas and are meant to encourage out-of-the-box thinking.

From the above discussion, it can be concluded that the Inventive step is an indispensable criterionfor judging an Invention for granting of a Patent. It is imperative that an Invention should have technical advancement as compared to the existing knowledge and it should not be a mere workshop improvement. Therefore, Inventive step should be ascertained in order to avoid the rejection of the patent application during office action.

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