The Horror: Failing the "Person of Ordinary Skill" Test
Even if your invention is new (novel), you may not obtain a patent if it is deemed obvious.
- The Test: The invention must not be an obvious extension or modification of existing work in the eyes of a person having ordinary skill in the relevant field (PHOSITA).
- The Trap: What seems like a brilliant leap to you, if you aren’t someone who works in the field of the invention regularly, may be considered an obvious combination of existing solutions to someone who does.
- The Rejection: If the differences between your invention and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made, the application will be rejected.
Actionable Takeaway
When drafting claims, emphasize the unexpected result or the technical difficulty that your invention overcame. Your lawyer must argue that your invention represents a significant leap beyond what has been previously achieved.
Intellectual property is one of the most terrifyingly useful tools you have. If you’re a creator or other entrepreneur ready to build a frighteningly powerful brand and business, you need to know how to use it. You don’t have to face the darkness alone, though.
I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I’m an attorney in Champaign-Urbana, Illinois, but I serve intellectual property clients nationwide.
If you’d like to consult with me, please book a consultation online at kingpatentlaw.com or by calling my office at 312-596-2222 or 217-714-8558.
Please check out the other posts and pages on my website for more information on intellectual property and business law issues. I’m also on most major podcast platforms as “Know Your Rights: Your Intellectual Property and Business Law Playbook” (video on YouTube, Spotify, and Substack only) and on most social media as @kingpatentlaw.
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