Inventive step
Also called inventiveness, non-obviousness, problem-solution approach, lack of inventive step, Article 56 EPC
Inventive step is the patentability requirement that an invention must not be obvious to a person skilled in the art, having regard to the state of the art1,12. Under the European Patent Convention, patents are granted for inventions that are new, involve an inventive step and are susceptible of industrial application10.
China's Patent Law calls the requirement inventiveness9. WIPO lists the condition as an inventive step or non-obviousness12; in the United States, it is set out as non-obviousness in 35 U.S.C. 10311.
The state of the art and the skilled person
Inventive step is judged from the point of view of a skilled person who knows the state of the art. The EPO Guidelines define both3,4.
- For inventive step, the state of the art is as defined in Art. 54(2) EPC, but later-published European applications under Art. 54(3) are not considered1,3.
- The priority date counts as the date of filing, provided the priority is valid3.
- The state of the art may be the relevant common general knowledge, which need not be in writing and needs substantiation only if challenged3.
- The skilled person is a skilled practitioner in the relevant field with average knowledge and ability, aware of the common general knowledge and with access to everything in the state of the art4.
- The skilled person may be expected to look for suggestions in neighboring and general technical fields, or in remote fields if prompted to do so4.
- In some cases it is more appropriate to think of a group of people, such as a research or production team, rather than a single person4.
The problem-solution approach
To assess inventive step objectively and predictably, the EPO applies the problem-solution approach, which has three main stages5.
- Determine the closest prior artThe closest prior art discloses, in one reference, the combination of features that is the most promising starting point for a development leading to the invention. It generally corresponds to a similar use and requires the minimum of structural and functional modifications6.
- Formulate the objective technical problemIdentify the features that distinguish the claim from the closest prior art and the technical effect they produce, then formulate the technical problem. It may differ from the problem stated in the application7.
- Ask whether the skilled person would have arrived at the inventionThe question is whether the prior art as a whole would, not simply could, have prompted the skilled person faced with that problem to modify the closest prior art and arrive at the claimed invention8.
The problem must not contain pointers to the solution, because that would lead to an ex post facto view of inventive activity7. Features that make no contribution to the technical character of the invention cannot support a finding of inventive step7.
Inventive step by jurisdiction
Europe
China
- An invention or utility model must meet the requirements of novelty, inventiveness and practical use (Patent Law, Article 22)9.
- Inventiveness means that, compared with the prior art, an invention has prominent substantive features and represents an obvious progress, and a utility model has substantive features and represents a progress (Article 22)9.
United States
- A patent may not be obtained if the claimed invention as a whole would have been obvious before its effective filing date to a person having ordinary skill in the art (35 U.S.C. 103)11. See 35 U.S.C. 103 for how the USPTO applies it.
Inventive step vs novelty vs non-obviousness
| Test | What it asks | Notable feature |
|---|---|---|
| Inventive step (EPC) | Is the invention obvious to a person skilled in the art, having regard to the state of the art?1 | Problem-solution approach with a could-would test5,8 |
| Novelty | A separate criterion, examined before inventive step2 | Takes Art. 54(3) applications into account, which inventive step does not1 |
| Non-obviousness (US) | Would the claimed invention as a whole have been obvious to a person having ordinary skill in the art?11 | Judged before the effective filing date of the claimed invention11 |
Questions people ask
Search before filing
Novelty Search AI Agent
An AI agent that searches prior art for your invention and compares each reference with it feature by feature.
Run Novelty SearchIs inventive step the same as non-obviousness?
Broadly, yes. WIPO lists them as one condition, an inventive step or non-obviousness12, and both ask whether the invention would have been obvious to a skilled person1,11. The details differ. The EPO uses the problem-solution approach5, and earlier European applications that were published only on or after the filing date are not considered for inventive step (Art. 56 EPC)1. In the US, an obviousness rejection is ordinarily based on prior art under 35 U.S.C. 10213. That includes earlier-filed US patents and applications published or deemed published under 35 U.S.C. 122(b) (35 U.S.C. 102(a)(2))14.
Can an invention be new but lack inventive step?
Yes. Novelty and inventive step are two separate criteria, and the question of inventive step arises only once the invention is found to be novel2.
Which document is the closest prior art?
The one that discloses the combination of features forming the most promising starting point. It must be directed to a similar purpose or effect, or at least belong to the same or a closely related technical field, and in practice it generally corresponds to a similar use needing the minimum of structural and functional modifications6. To refuse an application or revoke a patent, it is enough to show lack of inventive step from one feasible starting point6.
Does the invention have to be an improvement?
No. The EPO interprets the technical problem broadly: it can simply be to provide an alternative to a known device or process with the same or similar effects, or one that is more cost-effective7.
How it connects
Go from the term to the task
Read how the method works, run it on your own product or idea, then try a free tool.
- 01 / How-toPatentability search: a practical guideCheck whether an invention is new before you spend on a filing.Read
- 02 / AI agentNovelty Search AI AgentAn AI agent that searches prior art for your invention and compares each reference with it feature by feature.Run it
- 03 / Free toolAI prior art searchDescribe an idea, get the closest patents.Try tool
More next stepsPatent draft style studio