3.3.3.2.4. Inventive Step (Sec. 4 Patent Law)

The invention must involve an inventive step. It is considered to involve an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art (Sec. 4 Patent Law). The inventive step is a key criterion in patent law and distinguishes a patent from a utility model, which requires only a lower level of inventiveness to be protectable.

First of all the examiner has to ascertain the knowledge available to the average person skilled in that field before the date relevant for the priority of the application. The assessment whether the subject-matter of the invention was obvious for an average skilled person must be based on the art known at that time, seen in connection with the specialist knowledge of an average skilled person. If the ascertained art is part of another technical field, it is doubtful whether it can be attributed to the knowledge of the average skilled person. This is at best true for neighbouring fields.

It depends on the individual case whether the invention involves an inventive step. The decision must be taken with regard to the criteria of "technical teaching claimed", "summarised state of the art" and "person skilled in that field". Case law has not developed generally applicable specific criteria for this evaluative decision allowing to draw unambiguous conclusions as to inventiveness in other cases. Decisions in comparable cases can only serve as guidelines.

For instance, a quantum leap in the development, the overcoming of technical prejudices, futile efforts of experts, satisfaction of a long-standing need, a simple and low-cost way of manufacturing staple products or the reduction of production costs, etc. are indicative of an inventive step. These indications of evidence shall be taken into consideration when deciding on the inventive.