Introduction

Patent Law across the globe is universally governed by several factors and essential elements like novelty, utility, non-obviousness etc., the major one being the “inventive step” or non-obviousness. Non-obviousness helps to distinguish true innovations from other insignificant tweaks. This paradigm ensures that frivolous advances do not get recognition, rather only such contributions that reflect authentic knowledge-based inventions gain protection under the patent laws within various global jurisdictions. Despite having such universally accepted factors, there exist varying concepts, theories, notions and most importantly provisions fashioning a patchwork of standards which must be thoroughly navigated. The purpose of this article is to navigate the interpretation and application of inventive step or obviousness standards across the United States, European Union, China and India by way of various tests, maxims, judicial pronouncements and recent trends in IP. On one hand, where the United States believes in a flexible common-sense approach towards such standards, European Union emphasizes on a well-structured methodology in order to avoid perception-based notions. Similarly, China, having inclined towards the EPO model, emphasizes on pragmatic rationale through technical advancements whereas India uses a hybrid framework which acknowledges both technical aspects as well as economic implications as the governing principles for establishing an inventive step. Before plunging into the intricate details regarding these global standards, it is essential to determine the meaning and significance of non-obviousness or the inventive step.

What is Inventive Step

“Inventive step” or non-obviousness, as the name suggests, signifies that an invention must be such that is capable of being beyond what would be obvious to an individual possessing ordinary skills in same technical field, on the basis of existing knowledge. The term originates from Article 27 of the TRIPS Agreement which clearly rules out that such invention which is new, involves an inventive step and is capable of industrial application, shall be granted patent. This provision, read in conjunction with other local laws, establishes that an invention must go beyond mere novelty and must also be in consonance with the non-obviousness aspect.

There is a distinction between the term used in the United States and that used in the European Union, China and India. In jurisdictions like EU, China and India the term “inventive step” is employed, however in the United States the term used is “non-obviousness”. The relative terminology might be different, but the meaning and the function they serve are identical as both the terms ensure the filtering out of incremental advances which do not rise to the altitude of patentable ingenuity.

The inventive step concept is evaluated by considering whether the invention would have been obvious to an individual known as the Person Having Ordinary Skill in The Art (PHOSITA). Such an individual is assumed to possess average expertise and practical knowledge in the relevant field at the time when such invention was borne. This framework helps to ensure the consistency and objectivity of obviousness assessment, rather than being influenced by subjective views or the benefit of hindsight on the part of patent examiners or the judges or even the inventors. The application of this doctrine, however, is far from uniform across jurisdictions. Differences arise not only in the legal tests applied but also in the evidentiary burdens, interpretative norms, and types of permissible post-filing data. These differences are especially noticeable in complex and high-velocity fields such as AI, pharmaceuticals, and brain-computed interfaces (BCIs), where it is often difficult to distinguish between standard experimentation and truly inventive progress.

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The United States: Graham Test and KSR Ruling

The patents and non-obviousness aspect is governed in the United States according to the provisions of 35 U.S. Code, “A patent for a claimed invention 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.” Leading case laws that aptly discuss the obviousness standard in the United States are as follows:

Graham v. John Deere Co., in which the Supreme Court articulated a foundational four-factor framework in order to evaluate obviousness-

1. The scope and content of prior art.

2. The differences between the prior art and the claims at issue.

3. The level of ordinary skill in the pertinent art.

4. Secondary considerations for non-obviousness (objective indicia), including commercial success, long-felt but unsolved needs, failure of others, and unexpected results.

The doctrine took a flexible turn in the KSR Int’l Co. v. Teleflex Inc., wherein the Court, while reaffirming the Graham Factors, diverted from the rigid “teaching-suggestion-motivation” (TSM Test) to endorse a broader, common-sense approach. TSM Test was the principal test for obviousness before the KSR ruling. It was held that when a person of ordinary skill can implement a predictable variation using known techniques, the invention is said to be obvious. The court emphasized on the fact that patent law should not reward innovations that are merely the product of ordinary skill and routine application.

In practice, U.S. applicants often bolster their arguments with regards to inventive step or non- obviousness by citing “secondary considerations”. These are objective signs that an invention was not obvious, based on its real-world impact. For instance, if the invention has achieved notable commercial success, addressed a longstanding problem, or succeeded where others have failed, it suggests that the invention involved more than ordinary improvement. Courts have clarified that these factors are not optional. If present, they must be evaluated before reaching any conclusion on obviousness.

The European Union: The Problem-Solution Approach

Inventive step in European jurisdiction is governed by Article 56 of European Patent Convention (EPC). The European Patent Office (EPO) applies a rigorous and structured analysis known as the Problem-Solution Approach to assess the inventive step. This approach works in five sequential stages:

1. Identifying the closest prior art.

2. Determining distinctive aspects to distinguish closest prior art from the claimed invention.

3. Identifying the technical effect arising out of such distinction.

4. Defining the objective technical problem to be solved.

5. Evaluating whether the claimed invention, in light of the closest prior art and with no hindsight, would have been obvious to a person skilled in the art.

This approach is specifically designed to minimise the risk of hindsight bias and to anchor the inventive step inquiry in a clear logical framework. It ensures that the evaluation remains rooted in the technical contribution that the invention makes over the prior art. The EPO distinguishes between patentable technical solutions and unpatentable abstract ideas or business methods. In Biogen Inc v. Medeva Plc, Lord Hoffmann stated: “A proper statement of the inventive concept must include a certain express or implied reference to the problem to be overcome by the invention.” According to P.G. Cole, “this seemed to refer to the problem and solution method imposed by the EPO in order to ensure consistency between its examiners.”

China: Increasing Rigor and Strategic Use

The requirements for granting of patent right is governed by Article 22 of the Patent Law of the People’s Republic of China. It explicitly stipulates that an invention must possess novelty, invention and practical applicability. The inventiveness requirement mandates that the invention must have a substantive distinguishing features and a notable progress over the prior art. In other words, the claimed invention should be devoid of any obviousness character to a person who is skilled in such art, keeping in mind the existing technical knowledge.

China relies on a hybrid approach keeping in mind the European Patent Office’s (EPO) Problem-Solution approach as well as the U.S. Graham factors. Under the EPO approach, it follows the five sequential stages of problem-solution approach, as mentioned previously and from the U.S. influence, it incorporates flexible evidentiary considerations such as technical advancement demonstrated by experimental results, and sometimes market-related secondary indicia. This blended model aims to balance doctrinal rigor with real-worlds technical and economic relevance.

The CNIPA (formerly known as SIPO) Guidelines for Patent Examination further outline that an invention is deemed non-obvious if it demonstrates an “unexpected technical effect” i.e., an effect that goes beyond what would have been predicted from prior art, especially in sectors like AI, pharmaceuticals and BCIs. In absence of such evidence, applications may be rejected as being routine extensions of known methods. Furthermore, patents related to brain-controlled robotic limbs were denied due to lack of clear performance enhancement data. This demonstrates the growing rigor of CNIPA’s review standards, particularly for emerging technologies.

India: Evolving Interpretations and Judicial Balancing

As per Section 2(1)(ja) of the Indian Patent Act, “inventive step involves technical advancement as compared to the existing knowledge or having economic significance or both, and that makes the invention not obvious to a person skilled in the art.” Through the use of both technical advancement as well as economic significance it can be sensed that India might be better at flexible assessment of inventions in the fields of pharmaceuticals, diagnostics and software than other jurisdictions.

Indian courts have consistently reinforced the centrality of non-obviousness in maintaining a delicate balance between innovation and public interest. The Supreme Court in the case of Novartis AG vs. Union of India denied a patent for beta-crystalline form of Imanitib Mesylate, holding that the claimed invention was not efficient enough thus being obvious. Similarly, in F. Hoffman-La Roche Ltd. vs. Cipla Ltd., the Delhi High Court held that regardless of the novelty factor, an invention may be rejected for patent if it does not establish substantial technical advancement factor with regards to a known compound.

In India, the evaluation of inventive step is done by The Indian Patent Office (IPO) wherein a flexible and mixed approach (EPO + Graham factors) is used to examine patent applications. There is still an ongoing evolution in India’s inventive step jurisprudence which aims to avert ‘evergreening’ of patents in sectors like pharmaceuticals in consonance with the promotion of authentic innovations.

Challenges in Harmonization

Despite the shared global goal of incentivising innovation, harmonizing the inventive step standard across jurisdictions present numerous challenges. These challenges are rooted not only in statutory differences but in the philosophical and policy orientations of different regions. Each jurisdiction has a different way of interpreting inventive step standard keeping in mind their own socio-economic obligations. For instance, India uses a cautious approach particularly in patents regarding pharmaceutical sector to prioritise its public health domain and prevention of ‘evergreening’. Conversely, the United States uses a market-oriented approach to broaden the patent protection. The European Union follows strict technical approach like the problem-solution approach which can be a significant obstacle for software and AI innovations which do not yield substantial technical effects.

Moreover, use of distinctive terms such as ‘non-obviousness’ in the U.S. and ‘inventive step’ in most other jurisdictions are more than semantic. They reflect diverging thresholds for assessment; evidentiary burdens and the procedural frameworks used in examination of inventive step which sometimes leads to uncertain legal understanding in inventors across borders thereby increasing the cost and complexity of attaining patent protection internationally. This patchwork of standards impedes seamless technology transfer and complicates R&D investments for global corporations, startups and universities alike.

Conclusion

The inventive step standard is an integral part of patent system in various jurisdictions. Despite the fact that every jurisdiction applies the concept of inventive step differently, their underlying goals remain the same i.e., to safeguard innovations which are not ordinary. In order to overcome the differential challenges among various jurisdictions regarding the inventive step standard, organizations like WIPO and other patent cooperation forums should effectively enforce certain guidelines to promote conjunction around various theories and models including PHOSITA, secondary considerations etc. Apart from this, courts can enhance consistency by cross-referencing foreign decisions that deal with analogous legal questions, which has already seen in the growing influence of EPO decisions in Indian IPO and court proceedings. The administrative machinery, particularly patent offices, by conducting regular examiner training, benchmarking exercises and shared patent databases can reduce disparities in examining the inventive step claims. With the rise of global R&D, cross-border collaborations and disruptive technologies, aligning inventive step standards will help patent systems worldwide to better support next generation of meaningful innovations.

Author :-Chahat Paneri, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.

References

1. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 27, https://www.wto.org/english/docs_e/legal_e/27-trips.pdf.

2. 35 U.S.C. § 103 – Conditions for Patentability; Non-Obvious Subject Matter, United States Code, https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title35-section103&num=0&edition=prelim.

3. Graham v. John Deere Co., 383 U.S. 1 (1966), United States Supreme Court, https://supreme.justia.com/cases/federal/us/383/1/.

4. KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), United States Supreme Court, https://supreme.justia.com/cases/federal/us/550/398/.

5. European Patent Convention (EPC), Article 56 – Inventive Step, October 5, 1973 (as revised), European Patent Office, https://www.epo.org/law-practice/legal-texts/html/epc/2020/e/ar56.html.

6. European Patent Office (EPO), Guidelines for Examination – Part G, Chapter VII: Inventive Step (Problem-Solution Approach), November 2024, https://www.epo.org/law-practice/legal-texts/html/guidelines/e/g_vii.htm.

7. Patent Law of the People’s Republic of China, Article 22 – Inventiveness Requirement, 2020 Amendment, National Intellectual Property Administration (CNIPA), https://www.cnipa.gov.cn/art/2020/10/17/art_53_173456.html.

8. National Intellectual Property Administration (CNIPA), Guidelines for Patent Examination (2023 Revision) – Part II, Chapter 4: Inventiveness, https://www.cnipa.gov.cn/art/2023/12/21/art_53_189456.html.

9. The Patents Act, 1970 (Act No. 39 of 1970), § 2(1)(ja).

10. Novartis AG v. Union of India & Ors., (2013) 6 SCC 1.

11. F. Hoffmann-La Roche Ltd. v. Cipla Ltd., 2015 SCC OnLine Del 13619.

12. House of Lords (UK), Biogen Inc v. Medeva Plc, [1997] RPC 1, https://publications.parliament.uk/pa/ld199697/ldjudgmt/jd970131/biogen-1.htm.

13. P. G. Cole, Inventive Step: Meaning of the EPO Problem and Solution Approach and Implications for the United Kingdom: Part 1, 20 European Intellectual Property Review 214, 1998; Part 2, 20 EIPR 267, 1998.

14. World Intellectual Property Organization (WIPO), Standing Committee on the Law of Patents (SCP) – Comparative Study on Inventive Step / Non-Obviousness, SCP/22/3, 2015, https://www.wipo.int/edocs/mdocs/scp/en/scp_22/scp_22_3.pdf.

15. National Intellectual Property Administration (CNIPA), Annual Report on Patent Examination Quality 2024 – Inventiveness Assessment in Emerging Technologies, https://www.cnipa.gov.cn/art/2025/1/15/art_53_189457.html.

16. European Patent Office (EPO), Case Law of the Boards of Appeal – Inventive Step (10th edition), 2022, https://www.epo.org/law-practice/legal-texts/html/caselaw/2022/e/clr_i_d_1.htm.

17. United States Patent and Trademark Office (USPTO), Manual of Patent Examining Procedure (MPEP) – Section 2141-2144: Examination Guidelines for Determining Obviousness, 9th Edition, June 2024, https://www.uspto.gov/web/offices/pac/mpep/s2141.html.

18. Indian Patent Office (IPO), Manual of Patent Office Practice and Procedure – Chapter 08: Inventive Step Assessment, 2023, https://ipindia.gov.in/writereaddata/Portal/IPOGuidelinesManuals/1_31_1_manual-of-patent-practice.pdf.