The minimum requirements for obtaining a patent are that the invention must be:
1 and 2 and 3
- non-obvious or include an inventive step
- useful or capable of industrial application
Why? As set out in TRIPS, the minimum requirements for an invention to be patentable include all the standards mentioned above. Novel means to be new in the sense of not having been publicly known before. To determine whether an invention is novel, patent examiners establish whether or not the invention has been published or disclosed publicly before the earliest filing of the patent application. In most countries, a written publication anywhere in the worlddescribing the invention destroys its novelty. Additionally, if the invention has previously been used in the countrywhere patent protection is sought, the invention will be deemed not novel.
For an invention to be patentable it must be non-obvious to a person of ordinary skill in the field of the invention. In most countries the requirement of non-obviousness is expressed as an inventive step over the prior art. In other words, a person who has all the publicly available information in the art of the invention and applies his/her skills would not come up with the same invention. Obviousness is a difficult requirement to assess even with well-established guidelines to assist patent examiners.
The requirement of industrial application or usefulness is a way to distinguish mere scientific advances in basic sciences or theoretical matters, which are not patentable subject matter, from products or processes that have real life application.
However, the standards of novelty depend on awareness by examiners of prior art wherever it is deemed relevant. The standards of obviousness are extremely contentious as well.