By
Carla Mouta-Bellum & Stacy Lewis & Li Feng
Under 35 U.S.C. § 103, a claim is not
patentable if the “differences between the claimed invention and prior art are
such that the claimed invention as a whole would have been obvious” to a person
of ordinary skill in the art, before the effective filing date of the claimed
invention. The U.S. Supreme Court set
forth half a century ago a four-prong test to determine obviousness: (i) the
scope and content of prior art, (ii) differences between claimed subject matter
and prior art, (iii) the level of ordinary skill in the art, and (iv) objective
evidence of nonobviousness, such as long-felt but unsolved need, failure of
others, commercial success, unexpected results, and skepticism. Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966).
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