Patent and non – obviousness

The invention’s non-obviousness is one of three requirements for the grant of a patent, the others being novelty and industrial applicability. Simply defined, nonobvious as a patent word indicates that the invention must not be obvious or evident to a person of ordinary skill in the relevant field. The invention must improve on the prior art in some way. It should not be only a workshop enhancement or a general re-arrangement of the invention’s components/features.

This non-obviousness test will be conducted from the perspective of a person with ordinary skills in the art, i.e. not an expert in that technology. The test is particularly important and subjective, as the adjudicator must assess the “innovative step” on the scale and criteria of a person typically proficient in that art while deciding on the inventive step.

In the landmark decision Graham et al. v. John Deere Co. of 2 Kansas City et al., the US Supreme Court highlighted the components involved in the non-obviousness approach. Three tests were established as criteria for determining obviousness, and these are generally referred to as Graham factors:

  1. the prior art’s breadth and content;

2. the differences between the prior art and the claims at issue; and

3. the level of ordinary competence in the relevant art.

Aside from the aforementioned factors, the US Supreme Court established secondary considerations as follows:

 1. financial success of the invention,

2. long felt but unsatisfied need, and

3. failures of others could serve as proof of non-obviousness.

Given that there is no defined criterion for judging whether an invention is obvious or not, the condition of “non-obviousness” is somewhat contentious. Non-obviousness indicates that the innovation must not be obvious to a person competent in the relevant field. As a result, this is a subjective need that changes from innovation to invention. To avoid this subjectivity, several jurisdictions have devised different criteria for deciding whether or not an innovation was apparent.

Section 2(ja) of the Patents Act of 1970 defines the non-obviousness/inventive step requirement as “a feature of an invention that entails technological advance as compared to existing knowledge or has economic relevance or both and that renders the invention not obvious to a person competent in the art.”

The statutory definition only goes so far as to state that for an invention to be patentable, it must have a “technical advance” or “economic significance” about the preceding arts, making the invention non-obvious to a person knowledgeable in the same field as the technology. In terms of interpretation, the concept allows for subjectivity.

The inventive step was interpreted by the Supreme Court in the matter of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries. In this instance, the court held that ‘obviousness’ must be considered strictly and objectively. The court used the following test to determine obviousness: 

“Had the document been placed in the hands of a competent craftsman (or engineer as distinguished from a mere artisan), endowed with the common general knowledge at the ‘priority date’, who was faced with the problem solved by the patentee but without knowledge of the patented invention, would he have come up with the invention in question”

Simply said, the test determines whether any other individual knowledgeable in the same field as the invention could have come up with the same idea if faced with the same situation at the time the invention was developed.

Even though the case was resolved in 1978, its relevance has not faded with time. As a result, in India, the statute outlines creative steps, and judicial precedent provides an objective interpretation of the conditions for assessing an invention’s obviousness.


Graham et al. v. John Deere Co. of 2 Kansas City et al

Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries

The Patent Act, 1970

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.


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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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