35 U.S.C. § 103 Conditions For Patentability; Non-Obvious Subject Matter

• Library: United States Statutes
• Edition: 2023
• Currency: Current through P.L. 118-34 (published on www.congress.gov on 12/26/2023), except for [P. L. 118-31]
• Citation: 35 U.S.C. § 103
• Year: 2023

A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.

Cite as 35 U.S.C. § 103

Source: July 19, 1952, ch. 950, 66 Stat. 798; Pub. L. 98-622, title I, §103, Nov. 8, 1984, 98 Stat. 3384; Pub. L. 104-41, §1, Nov. 1, 1995, 109 Stat. 351; Pub. L. 106-113, div. B, §1000(a)(9) [title IV, §4807(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A-591; Pub. L. 108-453, §2, Dec. 10, 2004, 118 Stat. 3596; Pub. L. 112-29, §§3(c), Sept. 16, 2011, 20, Sept. 16, 2011, 125 Stat. 287, 335.

Notes from the Office of Law Revision Counsel

current through 5/22/2023

HISTORICAL AND REVISION NOTES

There is no provision corresponding to the first sentence explicitly stated in the present statutes, but the refusal of patents by the Patent Office, and the holding of patents invalid by the courts, on the ground of lack of invention or lack of patentable novelty has been followed since at least as early as 1850. This paragraph is added with the view that an explicit statement in the statute may have some stabilizing effect, and also to serve as a basis for the addition at a later time of some criteria which may be worked out.

The second sentence states that patentability as to this requirement is not to be negatived by the manner in which the invention was made, that is, it is immaterial whether it resulted from long toil and experimentation or from a flash of genius.

EDITORIAL NOTES

AMENDMENTS

2011- Pub. L. 112-29, §3(c), amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) and related to conditions for patentability; non-obvious subject matter.

Subsecs. (a), (c)(1). Pub. L. 112-29, §20(j), struck out "of this title" after "102".

2004-Subsec. (c). Pub. L. 108-453 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "Subject matter developed by another person, which qualifies as prior art only under one or more of subsections (e), (f), and (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the invention was made, owned by the same person or subject to an obligation of assignment to the same person."