Abstract:
The determination of inventive step in the law of patents is most frequently framed in terms of its interface with novelty; ascertaining the state of the art for the purposes of testing the requirement; the traits or attributes that a skilled addressee is expected to possess; and how to know if an invention is obvious to the skilled person. This article traverses these issues and considers the various legal tests (including the European “problem and solution” approach) that have evolved in different jurisdictions. The article suggests a revised prescriptive test for inventive step that may be of assistance in specific situations.