There are many formalities that make it challenging to navigate through the patenting process. However, there are three requirements that are key to understand patents:

1. Technicality
2. Novelty
3. Non-obviousness

Technicality

Patents are only applicable to technical inventions. In many cases technicality is no relevant hurdle, because no one questions the technical nature of a brake system, a laser, a micro chip, or an engine. However, in some areas technicality isn’t self evident, because many algorithms could also be executed by a human with pen and paper, or processes are closer to business methods than technical processes.

Novelty

Only novel inventions can be patented, which means: if there is a single publication anywhere on the world, which already disclosed the invention before the filing of the patent application at the patent office, the invention is not considered to be novel. The novelty destroying publication can be in any language or format, like a video, a company website, an article, a book, a patent publication or a blog post. The novelty criterion is based on the fundamental “deal” of a patent, which is: the patent owner receives an exclusive right of commercializing the invention in return for providing newly researched knowledge. If the knowledge offered by the applicant is not new, the applicant does not receive a patent.

Non-obviousness

Once an invention is considered technical and novel, the invention must also be based on an inventive step, or in US-law often the term non-obviousness is used. This means that the invention should not be something that someone with ordinary skill in the relevant field would readily think of or find straightforward to develop.

Similar to the novelty assessment, the inventive step is evaluated by comparing the invention to the existing body of knowledge (prior art), which includes previously patented inventions, published articles, and any other publicly available information. The difference to the novelty assessment is that teachings of multiple publications may be combined for arguing against the inventiveness of an invention. In some jurisdictions, such as Europe, the so-called problem-solution approach is used to assess inventive step.

As described in the examination guidelines of the European Patent Office, the problem solution approach involves:

1. Determining the "closest prior art", which is the most relevant publication that is similar to the invention in question. This closest prior art serves as the starting point for the analysis.
2. Establishing the "objective technical problem" to be solved, which requires (a) identifying the differentiating features between the invention and the closest prior art, (b) determining the technical effect of the differentiating features, and (c) determining the objective technical problem, which the differentiating features solve.
3. Considering whether or not the claimed invention, starting from the closest prior art and the objective technical problem, would have been obvious to the skilled person, using the could-would-approach. For this approach the question to be answered “is not whether the skilled person could have arrived at the invention by adapting or modifying the closest prior art but whether the skilled person would have done so because the prior art provided motivation to do so in the expectation of some improvement or advantage” (see EPO guidelines G-VII, 5.3).

Example for the problem-solution approach

Let's consider a simple hypothetical invention in the field of kitchen appliances and analyze it using the European Patent Office's Problem-Solution Approach.

Hypothetical Invention: A new type of electric kettle with an integrated tea infuser that automatically lifts out of the water when the water boils.

1. Determining the Closest Prior Art:

Imagine there are prior art documents (e.g., a patent or product brochure) describing:

• Prior Art A: A standard electric kettle with a heating element and an on/off switch. It boils water, and the user manually adds a tea bag or infuser afterward.
• Prior Art B: A teapot with a removable tea infuser basket. The user manually fills the pot with hot water and then inserts the infuser.
• Prior Art C: An electric kettle with a manually operated removable tea infuser. The user has to manually lower and lift the infuser.

In this case, Prior Art C would likely be considered the closest prior art. It shares the most technical features with the claimed invention, namely an electric kettle and a tea infuser integrated into it. The main difference lies in the automatic lifting mechanism of our invention.

2. Establishing the Objective Technical Problem:

(a) Identifying the Differentiating Features:

The key differentiating feature between our claimed invention (the electric kettle with an automatically lifting tea infuser) and the closest prior art (Prior Art C - electric kettle with a manually operated tea infuser) is the automatic lifting mechanism for the tea infuser upon boiling.

(b) Determining the Technical Effect of the Differentiating Features:

What is the technical effect of this automatic lifting mechanism?

• Prevents over-steeping of the tea: Once the water boils, the infuser is automatically removed, ensuring the tea doesn't become bitter due to prolonged steeping.
• Increased convenience: The user doesn't need to be present to manually remove the infuser at the exact moment the water boils.

(c) Determining the Objective Technical Problem:

Based on the differentiating feature and its technical effects, the objective technical problem can be formulated as: To provide a way of brewing tea, preventing over-steeping.

3. Considering Obviousness to the Skilled Person (Could-Would Approach):

Now we need to consider whether a skilled person, starting from the closest Prior Art C (the kettle with a manually operated infuser) and faced with the objective technical problem (providing way to brew tea and prevent over-steeping), would have arrived at the claimed invention (the automatically lifting infuser).

Let's analyze this using the "could-would" approach:

• Could the skilled person have arrived at the invention? Yes, a skilled person in the field of kitchen appliance design, knowing about existing automatic mechanisms (e.g., automatic shut-off in kettles) and the desire for convenience, could have conceived of a mechanism to automatically lift the infuser.
• Would the skilled person have done so because the prior art provided motivation to do so in the expectation of some improvement or advantage? This is the crucial question.
  • Did Prior Art C or any other cited prior art suggest or hint at the idea of automating the lifting of the infuser? If Prior Art C explicitly mentioned the inconvenience of manual lifting or the risk of over-steeping and suggested automation as a potential solution, then the invention might be considered obvious.
  • Were there other common general knowledge or standard practices in related fields (e.g., automated filtering in coffee machines) that would have motivated the skilled person to apply a similar principle to a tea infuser in a kettle? If such motivations existed and were readily applicable, it could point towards obviousness.
  • Was the solution a simple and straightforward application of well-known technology without requiring any inventive step? If the automatic lifting mechanism was a trivial adaptation of existing mechanisms, it might be considered obvious.

Hypothetical conclusion:

If there was no specific suggestion in the prior art (including Prior Art C) to automate the lifting mechanism, and if implementing such a mechanism required more than just routine engineering and provided a significant improvement in convenience and tea quality (by consistently preventing over-steeping), then the claimed invention might be considered not obvious. The skilled person, starting from the manually operated infuser, might not have been motivated by the prior art to implement the automatic lifting feature in the expectation of achieving these advantages.

Conversely, if the prior art hinted at the problem of manual operation or over-steeping and suggested automation as a possible solution, or if similar automatic mechanisms were commonplace in analogous kitchen appliances, then the patent examiner might consider the invention obvious.

This simple example illustrates the step-by-step application of the EPO's Problem-Solution Approach to assess the inventive step of a claimed invention. The key is not just identifying the differences but also understanding the technical problem solved and whether the skilled person would have been motivated by the prior art to arrive at the claimed solution.