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Who determines obviousness ?

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Who determines obviousness ?
« on: June 17, 2017, 12:03:46 AM »
In the case of someone trying to patent a method of driving a nail by hitting it on the head
then anyone could argue that it's obvious to all and therefore not patent-able.
In other cases just exactly how is obviousness determined ?
Is someone well versed in the art to which the invention applies ?
How can obviousness be determined if no prior art for the invention exists ?

Brad

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Re: Who determines obviousness ?
« Reply #1 on: June 17, 2017, 06:57:59 AM »
Usually its the examiner who has to find some other patent or document that shows each piece of your invention.  So in your example the examiner would have to find at least one other patent or reference that teaches something similar to a nail and at least one patent or other reference that teaches hitting something with a sharp tip is known to cause that item to go into a surface.     The examiner would then have to make a statement that it would be obvious to combine the two and that it would be reasonable for someone to think you would combine the two to arrive at your invention.


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