Inventive step / non-obviousness

L’activité inventive constitue une condition de brevetabilité de l’invention selon laquelle cette dernière n’est protégeable que si elle ne découle pas d’une manière évidente de l’état de la technique pour un person skilled in the art.

The problem-solution approach is the analytical method used in patent law to assess the inventive step of an invention in European countries. This approach consists of three main steps.

1. Determining the closest state of the art.
2. Determining the objective technical problem.
3. Comparison of the invention with the closest prior art in order to determine whether the former was obvious compared with the latter to a person skilled in the art confronted with the technical problem posed.

We can also rely on secondary indicia of inventive step, which are additional pieces of evidence to demonstrate that the invention was indeed non-obvious to a person skilled in the art. Secondary indicia of inventive step typically include the following:

1. The commercial success of the invention. This can include evidence of significant sales, market share, brand recognition, positive customer feedback, etc.
2. The failure of previous attempts to solve the same problem. This may include evidence that others have tried unsuccessfully to solve the same problem as the invention, or that the invention has solved a problem that no one had solved before.
3. Significant differences from existing prior art inventions. This may include evidence that the invention represents a significant improvement over existing inventions in the same technical field.