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What Is An Inventive step?

Inventive stepMajority of patents are improvements of technical solutions that already existed. Improvements might be big or small, in other words - obvious and non-obvious. In terms of patents, it is judged if the improvement is obvious or not for a person skilled in the art. It means that for mechanical inventions, the right expert would be a mechanics engineer, for laser inventions - optics or laser engineer, etc.

However, the judgement of a person skilled in the art is always subjective. Therefore it is crucial to formulate right questions before giving it to the 'expert'. At the end of the day Inventive Step is the hardest to prove or argue requirement of patentability. In International Search Reports, lack of Inventive Step is marked with a symbol 'Y'.

In the way of your Idea Protection, let's analyze few easy-to-understand examples, which are confirmed to have inventive step in comparison with prior art inventions.

My favorite and, in overall, classical example is the pin:


Idea Protection, Pin Back in 1849 Mr. Hunt protected his idea of a pin for clipping of different fabric pieces together. As you see in the picture, several configurations of the pin were provided, whereas several of them being used even today.

It might seem there is nothing else to invent here... However, almost 150 years later - in Year 1994 - an american inventor Michail A. Mussell made an improvement on Hunt's pin.

The abstract of the new invention sound like this:

A safety pin having an axially extending coil type torsion spring, thereby avoiding pinching fabric to which it is attached. Alternative embodiments provide arrangements assuring alignment of the wire sections of the safety pin with the head. In one alternative embodiment, the wire sections of the safety pin bend toward the middle of the spring, and enter the head in parallel orientation. In a second embodiment, the head is angled with respect to the coil spring, and the wire sections form a V relative to one another.

An the drawing is following:

Inventive stepIt is quite clear, that the new patent targets another problem of the device, which was not solved before. Such solution is not only novel, but also has an inventive step. For more than a hundred years such improvement was not obvious to the manufacturers of pins.





Lack of Inventive Step

It would be good to provide patent examples in which the lack of inventive step is obvious. However we could not mention exact references of those patents as it is rather personal judgement.

One of the patents I have translated few years ago described a decorative plastic cover, dedicated to hide infrared sensor at the entrance of escalator. The purpose was purely decorative. I have no doubt the patent, though issued, would be very vulnerable in case of legal suit in the court.

I could mention more examples of lack of inventive step, but I see it more important to analyze, how those patents get granted at all.

  1. Change of claims after International Search Report (ISR). After receiving critical evaluations in terms of novelty or inventive step, the applicant decides to withdraw claims which are not new or lack of inventive step, by leaving some secondary features of the invention in the claims.
  2. The applicant is a patent troll. In such case the applicant tends to file very weak patents. In case they are granted, patent trolls blackmail reputable companies asking royalties, which are a bit less than the court process cost. Patent trolls deserve a separate post in order to better describe their business model.
  3. Lack of understanding. Some inventors think that every idea born in their heads are invaluable and unique. Sometimes obvious improvements are treated like biggest discoveries.  As I mentioned before, judgement on inventive step is rather subjective, therefore it is highly recommended that the inventor would take the chance to discuss his ideas with professional patent draftsman before filing.