Patent applicants may be unfairly prevented from obtaining commercially valuable protection for a product, particularly during the patent procurement phase, due to recent trends in the application of the doctrine of inherent obviousness. In this article, we briefly review the doctrine of inherency, in the context of an obviousness rejection, as a bar to patentability.

Novelty and nonobviousness are the twin pillars of patent eligibility criteria in any patent regime. Simply put, an invention must be new and cannot be obvious in view of the teachings of prior art. A claim that fails to meet the novelty requirement of 35 USC Section 102 is said to be anticipated. Conversely, if the differences between the claimed subject matter and the prior art are of such a degree that the invention as a whole would have been obvious at the time a patent application was filed, the claims are determined to be obvious under 35 USC Section 103.