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What Do Novelty And Obviousness Mean?

In order to be granted a patent, your invention must be novel (new) and non-obvious (not too close to another invention). When people discuss novelty and obviousness they are referring to a reason why a patent application’s claims are rejected while the patent application is pending. 

Novelty is usually called a “102 rejection,” and that’s simply shorthand for a rejection based on the patent law statute 35 U.S.C. 102. If you are interested in reading the code section, here is a link. A novelty or “102” rejection means that the Patent Office believes there is a single patent out there that discloses your invention. 

Obviousness is ofter referred to as a “103 rejection.” As you’ve probably guessed, that would be short for a rejection based off 35 U.S.C. 103, which can be found here. Under an obviousness type rejection, the Patent Office is asserting that your invention is too similar to 2-3 patents viewed together. 

With either novelty or obviousness rejections, your attorney will often be likely able to argue that the Patent Office is incorrect and your invention is novel or non-obvious. Alternatively, the attorney will be able to amend the claims of your patent application to further differentiate your applications claims from the references, thereby overcoming the rejection.