Patents
2. Are All Inventions Patentable?
(d) Unobviousness
A patentable invention must not be "obvious". Stated in the positive, a patentable invention must be "inventive." Not every small change or improvement to a known device, process, etc. is patentable. Such changes or improvements may produce important results, but they may be the result of obvious improvements resulting from experience or the application of routine skill. As such, they lack inventive ingenuity and are viewed by the patent law as mere "workshop improvements," not worthy of patent protection.
It is generally not a patentable invention to alter the proportions of ingredients that were previously used in combination, to alter the size or shape of articles, or to substitute equivalent materials. However, if some long-standing technological hurdle is overcome by such activity, for example, the miniaturization of transistorized circuitry into integrated circuits, such miniaturization may be unobvious, and hence, patentable.
Obviousness should not be confused with simplicity. Many inventions are obvious in retrospect. The determination of whether an innovation is unobvious is to be made from the perspective of a worker having ordinary skill in the technical field of the invention at the relevant date. Under Canada's laws, the relevant date is, as regards activities of persons excluding the inventor and those who derive their knowledge of the invention through the inventor, the effective filing date of the patent application. For the inventor and those who derive their knowledge of the invention through the inventor, the relevant date is one year prior to the actual Canadian filing date. In the United States, the relevant date for a determination of obviouness is the date of invention.
The notional worker referred to above is deemed to possess the basic knowledge and skill of an average worker in the technical field of the invention, such as can be demonstrated by standard textbooks, etc., and is deemed to have specific knowledge of all relevant prior printed publications and patents that were published (anywhere) prior to the relevant date. If the invention would have been obvious to such a worker possessed of this knowledge, then it is unpatentable.
The solution of a long-standing technical problem, and the fact that other workers in the relevant field have previously failed to solve the problem, affords evidence of inventive ingenuity in reaching a solution. Similarly, commercial success may also indicate inventiveness.
It should be appreciated that, in rejecting a patent application on the grounds of obviousness, the Patent Office is entitled to combine the teachings of one or more prior art patents or other printed publications, on the basis that it would have been obvious for an average worker in the art to do so. In contrast, with objections based upon lack of novelty, the Patent Office can only rely upon a single prior patent or other printed publication, to support such an anticipatory rejection. However, it will be readily apparent that the success or failure of a patent application is largely dependent upon the state of the prior art at the relevant date.