Computer Security and Cryptography

19.2 PATENTABILITY OF IDEAS

Until 1952, a patentable idea required only novelty and utility. Congress added non-obviousness in that year as a further requirement; 35 U.S.C. §103 provides that

… a patent may not be obtained, although the invention is not identically disclosed or described as set forth in 35 U.S.C. §102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was to a person having ordinary skill in the art to which the subject matter pertains.

The application of 35 U.S.C. §103 involves the consideration of four factors:

1. The scope and content of the prior art;¹
2. Differences between the prior art and the claims at issue;
3. The level of ordinary skill in the pertinent art; and
4. The obviousness or nonobviousness of the subject.

The evaluation of these four factors is not sharply defined.