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360 | <strong>Patent</strong> it YOURSELF Fig. 13C—Flowchart for Handling Prior-Art Rejections
ChaPter 13 | GETTING the Pto to DELIVER | 361 7. Analyze Novel Features for Unobviousness If the claim recites (or has been amended to recite) novel features, consider whether these are unobvious over the reference cited against it. All possible reasons for arguing unobviousness are listed in Fig. 13D (Part I). When you use any reasons from this chart, you should not merely copy the reason, as I’ve seen some inventors do. Rather, you must state facts in support of each reason you use. For example, if you select Reason 1 (Unexpected Results) after stating that your novel claimed structure produces new and unexpected results, state precisely what they are—such as that it does a job faster or more reliably. If you consider the features of your invention obvious, you’ll have to narrow the claim, either by adding more features from your specification or from narrower (dependent) claims (refer to Fig. 13C, above) or by reciting the existing features more narrowly. Part I—General Arguments Against Obviousness Below are arguments you may be able to make in response to a charge that your invention is obvious. You will have to go into more detail than to simply recite the argument. For example, if you are responding that the invention achieves unexpected results, you will have to list those unexpected results. For arguments 16 through 20, you may also need—in addition to a detailed explanation—a suitable declaration with attached exhibits. In addition, some arguments contain references to the MPEP. Check these sections before responding to make sure they have not been amended and that they are still relevant. 1. Unexpected Results: The results achieved by the invention are new, unexpected, superior, disproportionate, unsuggested, unusual, critical, and/or surprising. 2. Assumed Unworkability: Up to now those skilled in the art thought or were skeptical that the techniques used in the invention were unworkable or presented an insuperable barrier. 3. Assumed Insolubility: Up to now those skilled in the art thought or found the problem solved by the invention to be insoluble—that is, the invention converts failure into success. The failures of prior-art workers indicate that a solution was not obvious. 4. Commercial Success: The invention has attained commercial success. (Prove this by a declaration with supporting documents.) 5. Unrecognized Problem: The problem solved by the invention was never before even recognized much less solved. The recognition and solution of an unrecognized problem militates in favor of patentability. 6. Crowded Art: The invention is classified in a crowded art; therefore, a small step forward should be regarded as significant. 7. Omission of Element: An element of a prior-art device has been omitted or a prior-art version has been made simpler without loss of capability. 8. Unsuggested Modification: The prior art lacks any suggestion that the reference should be modified in a manner required to meet the claims. 9. Unappreciated Advantage: Up to now those skilled in the art never appreciated the advantage of the invention, although it is inherent. 10. Inoperative References: The prior-art references that were relied upon are inoperative. 11. Poor References: The prior-art references are vague, foreign, conflicting, or very old, and, therefore, are weak and should be construed narrowly. 12. Ancient Suggestion: Although the invention may possibly have been suggested by the prior art, the suggestion is many years old, was never implemented, and produced greatly inferior results. 13. Lack of Implementation: If the invention were in fact obvious, because of its advantages, those skilled in the art surely would have implemented it by now. That is—the fact that those skilled in the art have not implemented the invention, despite its great advantages, indicates that it is not obvious. 14. Misunderstood Reference: The reference does not teach what the examiner relies upon it as supposedly teaching. 15. Solution of Long-Felt and Unsolved Need: The inven tion solves a long-felt, long-existing, but unsolved need. 16. Commercial Acquiescence: The invention has been licensed, especially to a competitor. 17. Professional Recognition: The invention has been given an award or recognized in a professional publication. 18. Purchase Offers: Others, especially accused infringers, have tried to purchase or take a license under the invention. 19. Copying by Others: Others have chosen to copy and implement the invention, rather than using the techniques of the prior art. Fig. 13D—Arguments Against Obviousness Rejections (Part I)
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N O LO ® “The best roll-up-your-
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Products & Services Books & Softwar
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15th edition Patent It Yourself You
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Acknowledgments My deep thanks go t
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2 3 4 The Science and Magic of Inve
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8 9 E. Make and Sell Your Invention
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13 14 J. The Patent Laws of Other C
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Appendixes 1 2 Abbreviations Used i
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Your Legal Companion A. You Don’t
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Your Legal COMPANION | 3 D. Should
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Your Legal COMPANION | 5 E. New Mat
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C H A P T E R 4 Will Your Invention
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ChaPter 4 | Will Your INVENTION SEL
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C H A P T E R 7 What Should I Do Ne
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Fig. 7A—Invention Decision Chart
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ChaPter 7 | What SHOULD I do Next?
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How to Draft the Specification and
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A p p e n d i x 4 Fee Schedule CAUT
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Appendix 4 | Fee SCHEDULE | 475 37
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482 | Patent it YOURSELF A. Patent
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A p p e n d i x 6 Quick-Reference T
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Nondisclosure Agreement 1. Parties.
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Invention Disclosure Sheet of Inven
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Form 3-4: Application Data Sheet—
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Form 3-4: Application Data Sheet—
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Positive and Negative Factors Evalu
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Consultant’s Work Agreement 1. Pa
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Searcher’s Worksheet Sheet of Inv
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Form 10-1A: Declaration for Utility
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Form 10-1A: Declaration for Utility
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Form 10-2: Utility Patent Applicati
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Form 10-4: Credit Card Payment Form
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In the United States Patent and Tra
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Design Patent Application—Preambl
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Joint Applicants—Statement of Res
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they may do so with the written con
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Form 16-4: Recordation Form Cover S
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Universal License Agreement 1. Part
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whether or not any royalty payment
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compensation it recovers for any su
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Index A “A,” correct use of, 20
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INDex | 577 Biotechnology patents e
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INDex | 583 including all possible,
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INDex | 595 digital, for use in CAD
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INDex | 601 in notebook, 50, 51, 53
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Bestsellers The Small Business Star
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Online Legal Forms Nolo offers a la
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Keep Up to Date 1 Go to Nolo.com/ne
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About the Author David Pressman is
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