Just how “new” does the invention have to be?
There are two major parts to the definition of “patentably new”. The first of these requires the invention to be new in a narrow, but unambiguous sense. The invention satisfies this first test as long as there is no earlier patent, product, or published reference that has all of the invention’s claimed features. The second part of the definition requires the invention to be more than just a small straightforward improvement. In the US this limitation is stated by requiring that the subject matter of the invention, taken as a whole and considered at the time at which the invention was made, is not obvious to a person having ordinary technical skill in the art. In the European Patent Office and in international applications under the Patent Cooperation Treaty (PCT) the same sort of prohibition on patenting small, obvious improvements is handled by requiring “an inventive step”. Either one of these approaches puts a healthy dose of ambiguity into the examination process. There is always r
