Southfield, MI asked in Patents (Intellectual Property) for Michigan

Q: What is standards of novelty and nonobviousness in patent law? If I have a new food product.

How does it apply to a new food product?

1 Lawyer Answer
John B. Hudak
John B. Hudak

A: In general the standard for novelty and obviousness are:

Novelty: 35 U.S.C. 102 - An invention must be novel in order for the invention to obtain a patent. An invention is novel if all the elements of the invention were not previously described by someone else. An invention is not novel if all the elements of the invention were: (a) described in a printed publication (e.g. an academic article, blog post, etc.); (b) in public use (e.g. a used known home remedy for treating a cold like mixing tea and honey); (c) on sale (e.g. a product on the market); or (d) or otherwise available to the public (e.g. an invention in a Youtube video).

Nonobvious: 35 U.S.C. 103 - An invention must be nonobvious in order for the invention to obtain a patent. An invention may be novel (all the elements of the invention were not previously described by someone else), but the invention may be obvious. The meaning of obvious in patent law is similar to the normal definition of obvious. In patent law, an invention is obvious if someone who is familiar with the type of invention would interpret the invention as not sufficiently different than previously known inventions.

“Exemplary rationales that may support a conclusion of obviousness include:

• (A) Combining prior art elements according to known methods to yield predictable results;

• (B) Simple substitution of one known element for another to obtain predictable results;

• (C) Use of known technique to improve similar devices (methods, or products) in the same way;

• (D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;

• (E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;

• (F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;

• (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.” MPEP 2143

With a food product an issue of novelty may relate to something such as: the exact product is already being sold. And, for obviousness a possible issue may relate to: it is considered a simple substitution by a person having ordinary skill in the area of foods relating to the food product, to replace one ingredient for another (point B above). (This is a very simple and fast answer, if time and money were invested in patenting, one would have to do more than this simiple analysis).

This information was taken from the USPTO website ( and the MPEP (the manual used for prosecuting/submitting/examining patents). The USPTO website has other material about patents targeted to the average person. That said, novelty and nonobviousness (and other elements of patentability) has many nuances and needs a legal analysis that can be lengthy. The legal analysis related to patentability will be done with the use of the MPEP, case law, guidance released from the patent office, or other resources.

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