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Even if an applicant's claim for an invention is technically novel (i.e. not taught by a single prior art reference), a patent can still be denied to the applicant if the applicant's subject matter is "obvious". The purpose of forbidding patents on obvious technologies is to prevent a person from obtaining exclusive rights to what is effectively already in the possession of the public, even if documentation of the exact form of the applicant's embodiment happens to be lacking.
Accordingly, obviousness asks the question whether all previously known technology related to the invention would teach a " person having ordinary skill in the art", e.g. someone who does the type of things relating to the technical field of the invention, how to make the invention. Many applications for United States patents are initially rejected as being obvious.
The standard of obviousness and its application are more subjective and controversial than that of novelty. If the requirements are set very high, virtually nothing is patentable. Similarly if the requirements are very low, all kinds of trivial inventions can receive patents.
Generally, the patent laws make it difficult for patent examiners to employ hindsight reasoning in rejecting a claim as obvious, by requiring some teaching that would motivate a person of ordinary skill in the art to modify the technology found in the prior to arrive at the claimed invention. In the United States, objective evidence or secondary considerations of non-obviousness can overcome a proper obviousness rejection. Such secondary consideratons can include unexpected results, commercial success, long-felt need, failure of others, copying by others, licensing, and skepticism of experts.
As a practical matter, during examination the patent examiner will attempt to locate two or more references that when combined show all of the features of the claimed invention and indicate that one of ordinary skill would make that combination. Continuing the example of the claim limitation of a blade that is between "5 and 10 cm", if a second reference were found that said something like "in many instances where long blade sizes are required smaller length blades can be used with equal efficacy", then the examiner would argue that the two references in combination teach or suggest the claimed limitation.
The threshold for the obviousness standard can be particularly frustrating in genus- species situations. For example, if an inventor finds two species of a particular genus, e.g. two particular chemical compositions out of 10,000 in the broader genus, should the inventor be entitled to a patent on the entire genus? Further, what if someone has discovered the genus already, but not isolated any of the species, are the species obvious in light of the genus? Under US law, the species may still be patentable if they produce results that are unexpectedly different than that of other previously known members of the genus.
For example, suppose a software inventor unveils the quicksort sorting algorithm to the world but only discloses it using integers (this is the species). The next day, can someone else file a patent on an "improved" quicksort suitable for use on any set where a partial ordering can be defined (this is the genus)? Under US law, this is not a question of obviousness since a claim to the genus lacks novelty as the species is known.
Finally, in spite of all precautions, some patents still give a general impression of triviality. An example is given by the "combover" patent (U.S. Patent 4,022,227, filed December 1975), which has also been awarded the 2004 Ig Nobel Prize in engineering for its apparently unintentional ridiculousness.
As TRIPS agreement declares, the term of an issued patent is twenty years from earliest claimed filing date. In the United States, for applications filed prior to June 8, 1995, the patent term is seventeen years from the issue date. For applications filed on or after June 8, 1995, the term is twenty years from the earliest claimed filing date. The rules for patents in force and pending at the transition date (June 8, 1995) are significantly more complicated but grant the patentee whichever term is longer.
Also, in several countries there are multiple types of patents, and the twenty year term frequently only applies to so called utility patents and not design, petit, or other kinds of less heavily examined patents. For example, the term of a U.S. design patent, which protects the ornamental shape of objects, lasts fourteen years from its issue date.
If the better mousetrap patent is filed on January 1, 1996 and is issued or granted on January 1, 2000, it will lapse twenty years from filing: January 1, 2016. However, if the inventor comes up with a second improvement and claims priority to her first patent when filing the second patent on January 1, 1998, that second patent, after grant, would lapse twenty years from the earliest claimed priority: January 1, 2016.
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