Patent Obviousness and Graham Test

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To obtain a patent, an invention must fulfill three important patentability criteria: non-obvious, useful, and novel. If an invention is obvious to either experts or the general public, it cannot be patented. Obviousness is one of the crucial parameters on which issuance of Patent depends. It helps in determining whether or not an idea or invention is patentable. It is often subjective and even arbitrary which makes it one of the hardest concepts to understand.

Graham Test for obviousness is often used for determining the obviousness of an invention. This test constitutes four parts that provide the objective framework for evaluating obviousness. The four parts to this test are as follows:

1. Determining the scope and contents of the art when the invention was made

2. Ascertaining the differences between that art and the claim(s) at issue

3. Resolving the level of ordinary skill in the pertinent art when the invention was made

4. Considering the objective evidence present in the application indicating obviousness or non-obviousness when the invention was made

Using Graham Test for obviousness, the examiner studies the prior art. After this, he determines how the invention differs from it.  Then, the examiner determines whether an ordinary artisan would have found the invention obvious despite that prior art. While this process seems to be easy but usually it is not, because a patent application is usually drafted during the time of invention but they are examined several years later. Accordingly, by the time the applications are examined, people may consider them to be old news. Therefore, Graham Test works well if the examiner evaluates obviousness at the time the invention was made and not at the time the invention is examined.  

About the Author: Mr. Ankit Kumar, Patent Associate at Global Patent Filing. Can be reached at ankit@globalpatentfiling.com

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