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Patentable Differences

Of all the ways an invention is rejected by the USPTO, two of the most common ones are anticipation and obviousness.  Anticipation is when every single feature of an invention is found in an existing piece of “prior art” (a patent, a patent application, or another disclosure.) Obviousness is when an invention is an obvious combination of two or more pieces of prior art.  These rejections must be overcome, which is accomplished by argument, evidence, or amendment of the patent application.

While there are many arguments that can be made to overcome a rejection, the USPTO and the courts have decided that the following differences are insufficient to distinguish an invention from the prior art.

  1.  Aesthetic design change.  The courts have said on numerous occasions that matters related to ornamentation that have no mechanical function cannot be relied upon to distinguish an invention from those that already exist. When the only differences are aesthetic, and inventor should seek a design patent.
  2. Elimination of a step or an element.  Removing a part of an invention or its function is considered an obvious change if the function of the element is not desired.  Similarly, removing an element while retaining the element’s function may be considered obvious without further evidence as to how the removal of the element is a mechanical difference.
  3. Changes in size/shape/proportion.  Making something larger, smaller, or different in shape and/or proportion is often an insufficient difference unless there is a nonobvious advantage created by the change.
  4. Adding ingredients.  Adding additional ingredients that do not change the function of an invention is an insufficient difference for patentability.
  5. Changing a power source.  Adding a battery, solar powered charger, or another type of existing energy source to an invention is insufficient for distinguishing a new invention from prior art devices that do not include the same power source.

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