35 U.S.C. 103 — Conditions for patentability; non-obvious subject matter
Ninth Edition, Revision 01.2024
[Editor Note: Applicable to any patent application subject to the first inventor to file provisions of the AIA (see 35 U.S.C. 100 (note) ). See 35 U.S.C. 103 (pre‑AIA) for the law otherwise applicable.]
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 , 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. Patentability shall not be negated by the manner in which the invention was made.
(Amended Nov. 8, 1984, Public Law 98-622, sec. 103, 98 Stat. 3384; Nov. 1, 1995, Public Law 104-41, sec.1, 109 Stat. 3511; subsection (c) amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-591 (S. 1948 sec. 4807); subsection (c) amended Dec. 10, 2004, Public Law 108-453, sec. 2, 118 Stat. 3596; amended Sept. 16, 2011, Public Law 112-29, secs. 20(j) (effective Sept. 16, 2012) and 3(c) (effective March 16, 2013), 125 Stat. 284.)
(Public Law 112-29, sec. 14, 125 Stat. 284 (Sept. 16, 2011) provided that tax strategies are deemed to be within the prior art (see AIA § 14 ).)
Cited authority
Cited by
- 1302.14 Reasons for Allowance
- 1440 Examination of Reissue Application
- 1445 Reissue Application Examined in Same Manner as Original Application
- 1504.02 Novelty
- 1504.03 Nonobviousness
- 1504.06 Double Patenting
- 1504.20 Benefit Under 35 U.S.C. 120
- 1893.03(d) Unity of Invention
- 1901.02 Information Which Can Be Relied on in Protest
- 210 Priority to, or the Benefit of, the Filing Date of a Prior-Filed Application
- 2106 Patent Subject Matter Eligibility
- 2106.05 Eligibility Step 2B: Whether a Claim Amounts to Significantly More
- 2106.07(a) Formulating a Rejection For Lack of Subject Matter Eligibility
- 2113 Product-by-Process Claims
- 2114 Apparatus and Article Claims — Functional Language
- 2117 Markush Claims
- 2120 Rejection on Prior Art
- 2120.02 Rejections Under 35 U.S.C. 102(a)(1) or Pre-AIA 35 U.S.C. 102(a) or (b): Knowledge by Others, or Public Use, or On Sale
- 2124.01 Tax Strategies Deemed Within the Prior Art
- 2131.03 Anticipation of Ranges
- 2138 Pre-AIA 35 U.S.C. 102(g)
- 2138.01 Interference Practice
- 2138.02 “The Invention Was Made in This Country”
- 2138.03 “By Another Who Has Not Abandoned, Suppressed, or Concealed It”
- 2138.04 “Conception”
- 2138.05 “Reduction to Practice”
- 2138.06 “Reasonable Diligence”
- 2139.03 Form Paragraphs for Use in Rejections Under Pre-AIA 35 U.S.C. 102
- 2141 Examination Guidelines for Determining Obviousness Under 35 U.S.C. 103
- 2141.01 Scope and Content of the Prior Art
- 2142 Legal Concept of Prima Facie Obviousness
- 2143.01 Suggestion or Motivation To Modify the References
- 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions
- 2145 Consideration of Applicant’s Rebuttal Arguments and Evidence
- 2146.01 Prior Art Disqualification Under Pre-AIA 35 U.S.C. 103(c)
- 2146.03(a) Provisional Rejection (Obviousness) Under 35 U.S.C. 103(a) Using Provisional Prior Art Under Pre-AIA 35 U.S.C. 102(e)
- 2148 Form Paragraphs for Use in Rejections Under Pre-AIA 35 U.S.C. 103
- 2150 Examination Guidelines for 35 U.S.C. 102 and 103 as Amended by the First Inventor To File Provisions of the Leahy-Smith America Invents Act
- 2151 Overview of the Changes to 35 U.S.C. 102 and 103 in the AIA
- 2152.01 Effective Filing Date of the Claimed Invention
- 2152.02(b) Described in a Printed Publication
- 2152.06 Overcoming a 35 U.S.C. 102(a)(1) or 102(a)(2) Rejection
- 2152.07 Form Paragraphs for Use in Rejections Under AIA 35 U.S.C. 102
- 2154.01(b) Determining When Subject Matter Was Effectively Filed Under AIA 35 U.S.C. 102(d)
- 2154.01(d) Provisional Rejections Under 35 U.S.C. 102(a)(2); Reference Is a Copending U.S. Patent Application
- 2154.02(c) Prior Art Exception Under AIA 35 U.S.C. 102(b)(2)(C) to AIA 35 U.S.C. 102(a)(2) (Common Ownership or Obligation of Assignment)
- 2155.06 Situations in Which an Affidavit or Declaration Is Not Available
- 2156 Joint Research Agreements
- 2158 AIA 35 U.S.C. 103
- 2158.01 Form Paragraphs for Use in Rejections Under AIA 35 U.S.C. 103
- 2159 Applicability Date Provisions and Determining Whether an Application Is Subject to the First Inventor To File Provisions of the AIA
- 2159.01 Applications Filed Before March 16, 2013
- 2159.02 Applications Filed on or After March 16, 2013
- 2159.03 Applications Subject to the AIA but Also Containing a Claimed Invention Having an Effective Filing Date Before March 16, 2013
- 2159.04 Applicant Statement in Transition Applications Containing a Claimed Invention Having an Effective Filing Date on or After March 16, 2013
- 2173.06 Practice Compact Prosecution
- 2183 Making a Prima Facie Case of Equivalence
- 2190 Prosecution Laches and Res Judicata
- 2301.04 Applicability of 35 U.S.C. 102(g) to Applications filed on or after March 16, 2013
- 2304.04(c) Rejections Based on Disclaimer
- 2809 Items of Information
- 2809.01 Information Relating to the Correction of Factual Information
- 2811 Content of Request for Supplemental Examination
- 2816.02 Criteria for Making the Determination
- 2816.03 Content of the Determination
- 2920.05(a) Notification of Refusal
- 701 Statutory Authority for Examination
- 706 Rejection of Claims
- 706.02(j) [Reserved]
- 706.02(m) [Reserved]
- 706.07(a) Final Rejection, When Proper on Second Action
- 707 Examiner’s Letter or Action
- 708.02(a) Accelerated Examination
- 711.06(a) Citation and Use of Abstracts, Abbreviatures, and Defensive Publications as References
- 715 Swearing Behind a Reference — Affidavit or Declaration Under 37 CFR 1.131(a)
- 716.01(b) Nexus Requirement and Evidence of Nonobviousness
- 717 Prior Art Exceptions under AIA 35 U.S.C. 102(b)(1) and (2)
- 717.01 Affidavit or Declaration Under 37 CFR 1.130
- 717.01(d) U.S. Patent or Application Publication Claiming Same Invention
- 717.02(a) Invoking the Prior Art Exception under 35 U.S.C. 102(b)(2)(C)
- 717.02(b) Evaluating Whether the Prior Art Exception under AIA 35 U.S.C. 102(b)(2)(C) is Properly Invoked
- 717.02(c) Examination Procedure With Respect to the Prior Art Exception under AIA 35 U.S.C. 102(b)(2)(C)
- 717.02(d) Form Paragraphs With Respect to the Prior Art Exception under AIA 35 U.S.C. 102(b)(2)(C)
- 718 Affidavit or Declaration to Disqualify Commonly Owned Patent as Prior Art, 37 CFR 1.131(c)
- 804 Definition of Double Patenting
- 804.02 Avoiding a Double Patenting Rejection
- 804.03 Commonly Owned Inventions of Different Inventive Entities; Non-Commonly Owned Inventions Subject to a Joint Research Agreement
- 809.02(a) Election of Species Required
- 817 Outline of Letter for Restriction Requirement
- 821.03 Claims for Different Invention Added After an Office Action
- 35 U.S.C. 103 (pre-AIA) Conditions for patentability; non-obvious subject matter
- 35 U.S.C. 273 Defense to infringement based on prior commercial use
- 35 U.S.C. 311 Inter partes review
- AIA § 14 Tax strategies deemed within the prior art
- 37 CFR 42.104 Content of petition