It is determined by the inventive step whether a patent truly covers a novel invention or merely a refined version of an already existing product. This requirement ensures that patents are not issued for previously disclosed innovations that the “creator” has only slightly modified. Without it, someone could profit from an item simply by making minor changes, even bringing lawsuits against businesses that improve their processes with modest adjustments. An applicant must demonstrate tangible benefits to patenting the concept and prove that the innovation is not obvious to those skilled in the field. The inventive step is understood as surpassing the expected progress of technology, rather than simply taking the next logical move, and “obvious” remains one of the central terms in this discussion. Many also refer to the inventive step as the “non-obviousness clause.” The phrase “inventive step” is commonly used in Europe, while “non-obviousness” is more frequently used elsewhere.
For instance, in gardening, it is well known that plants require both nutrients and water to grow. Combining these elements in a product would not be inventive, since gardeners have been doing so for years. Novelty is another concept tied to the inventive step. Drs. Jonathan Atkinson and Rachel Jones define novelty as the requirement that a patent must not have been disclosed prior to filing, as noted in Future Science. This includes:
By applying for a patent before commercialization, the owner can demonstrate that the idea originated with them, ensuring that no one else can claim the same concept.
The inventive step rule allows businesses to keep developing new ideas without fear of violating patent restrictions. It prevents monopolies from being created around minor improvements, enabling enterprises to continue updating their systems to save costs and resources rather than halting natural progress.
John Richards notes that “obvious” comes from the Latin meaning “upon the road”—the next steps an inventor or business would naturally take. Technology illustrates this well. In recent years, advances have consistently made devices smaller, cheaper, and lighter. Consider the evolution from the first mobile phones to today’s smartphones. Creating a slightly smaller or lighter product (such as a plastic-cased phone instead of a metal one) would be an incremental, logical step—not an original idea deserving of patent protection.
One of the main challenges in patent law lies in the subjective nature of the tests. Standards often rely on interviews and individual judgments, since proving whether something is merely an inventive step can be difficult. The Teaching-Suggestion-Motivation (TSM) test, designed to assess non-obviousness, attempts to demonstrate that ideas must stem from instruction or suggestion. While criticized as contentious, it also guards against hindsight bias. Typically, experts are consulted to compare the new concept with prior work, but their backgrounds, education, and experiences inevitably influence the outcome. This leads to inconsistent standards across industries and individuals.
Despite its difficulties, the inventive step remains essential. According to the Omics Group, it reflects the primary goals of the patent system—encouraging people to develop original, patentable ideas. Attempts to patent outdated concepts or minimal modifications undermine this purpose.
Efforts continue to refine these laws and improve how lawyers and courts apply them. For example, one study reported in the European Journal of Law and Technology asked more than 200 students to distinguish between inventive steps and true innovations. Patent judges, with greater expertise, showed stronger consistency in determining whether something was obvious, highlighting the need for experienced evaluation.
In practice, determining obviousness in the United States involves three steps:
These steps—sometimes referred to as the Graham considerations, after Graham et al. v. John Deere Co. of Kansas City et al.—provide a structured approach. Courts may also consider commercial success, long-felt but unresolved needs, and failures of others as evidence that an invention is not obvious.
The notion of inventive step dates back to the 15th century, according to the World Intellectual Property Organization, but became central to patent systems in the 19th. Today, as patents grow more complex—particularly in software and technology—the requirement is more important than ever.
The terminology varies by jurisdiction: while this article uses both, it is important to stick with the term recognized in one’s region to avoid confusion. Some sources note that “inventive step” is more commonly applied in European legal systems, while “non-obviousness” is the term often used in American contexts.
The inventive step requirement plays a critical role in patent disputes. One side may claim novelty, while the other argues that customers or competitors independently developed the same idea. This underscores why non-obviousness standards remain vital, even after a patent has been granted.
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