Is It Obvious?

Written from 35 U.S.C. 103 and MPEP 2141 and 2143. The statute is law; the MPEP is examination guidance and binds no court. Current as of 22 August 2026.

The short version

Section 102 asks whether your invention is already there. Section 103 asks the harder question: even if it is not, would getting there have been obvious? The statute is two sentences long and contains no test at all. Every framework you have heard of comes from case law and from the manual examiners work to.

These pages describe what the tests require. None of them says anything about your invention.

Section 103 says a patent may not be obtained where the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious, before the effective filing date, to a person having ordinary skill in the art.

Then it says something people rarely expect. "Patentability shall not be negated by the manner in which the invention was made." How you got there does not count against you.

Those two sentences are the entire section. It names a standard and a perspective, and stops.

If you came here for the Graham factors or KSR, you want a different document. Section 103 contains no test, no factors and no framework. It does not even define a person of ordinary skill or say how to determine that level. Graham, KSR and the teaching-suggestion-motivation test all come from case law and examination guidance, which is what the pages below cover.

One structural point worth carrying: the phrase notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 puts this test after anticipation fails. Section 102 asks whether one reference has everything. Section 103 asks whether the gap was one an ordinarily skilled person would have closed. They run in sequence, not as alternatives.

What the Statute Names and What the Manual Adds

Where each part of the obviousness analysis comes from. Section 103 names a standard; the factual inquiries, the rationales and the caution all come from case law as the MPEP records it. As of 22 August 2026.
Element Source In the source's words
The standard35 U.S.C. 103A patent may not be obtained "if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains"
What does not count against you35 U.S.C. 103"Patentability shall not be negated by the manner in which the invention was made"
First factual inquiryMPEP 2141, recording Graham"Determining the scope and content of the prior art"
Second factual inquiryMPEP 2141, recording Graham"Ascertaining the differences between the claimed invention and the prior art"
Third factual inquiryMPEP 2141, recording Graham"Resolving the level of ordinary skill in the pertinent art"
Secondary considerationsMPEP 2141"these factual inquiries, as well as secondary considerations when present, must be analyzed"
The combination warningMPEP 2141, quoting KSRA "combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results"
Teaching-suggestion-motivationMPEP 2141"one of a number of valid rationales that could be used to determine obviousness", after KSR rejected its rigid application

The statute contains no test, no factors and no framework. It does not define a person having ordinary skill in the art and supplies no method for finding that level. Everything in the lower rows is case law and examination guidance, and the manual is explicit that "Obviousness is a question of law based on underlying factual inquiries". What none of the sources supply is a threshold: how large a difference must be, or how much unpredictability suffices, are determinations on facts.

The Pages

The seven rationales An obviousness rejection is an argument, and this is the menu it is drawn from. Most of the seven are about combination rather than copying. Read the Page Combining what exists Almost every software invention is an arrangement of known components, which makes this the question engineers actually have. Read the Page Novelty vs obviousness Two statutes, two questions. An invention can clear the first and fail the second, and nobody has done exactly this answers only one of them. Read the Page Anticipation Being told an idea is not new usually means someone found something similar. Anticipation is stricter than that. Read the Page

What These Pages Do Not Decide

Nothing here tells you whether your invention is obvious. That is a legal determination made against a specific record of prior art, and this site has no practitioner in the loop. Most people arrive at this question already convinced their own work is obvious, which is exactly why a page that appears to settle it would be doing the wrong thing.
  • They do not apply the standard to anyone's facts.
  • They do not say what a person of ordinary skill would have known in any field. The statute does not define that person, and neither can a page.
  • They do not tell you how to answer a rejection. Describing what a rejection asserts is different from coaching a response, and the second is practitioner work.
  • The sentence about the manner of making is quoted here because the statute says it. It is not a statement about your situation, your process, or your tooling.

Educational, not legal advice. Consult a registered patent practitioner about a specific invention and a specific body of prior art.

Related

Non-Obviousness Worksheet A §103 scaffold: define PHOSITA, map the prior-art landscape, capture the closest reference combinations, articulate why PHOSITA wouldn't combine them, and record secondary indicia. Practitioner work-aid. Get the Worksheet Software Patents After Alice Alice changed the rules, not the game. 58% of software patents still get approved. A guide to what survives, prosecution strategies, and what developers should document. Read the Guide What counts as prior art? A patent, a publication, a public use, a sale, or anything else available to the public. The one-year grace period is narrower than almost everyone expects. Read the Cluster