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Despite the shared language, there are tangible differences between the US, EU and UK standards, explain Jeffrey Lewis and Stuart Knight of Foley Hoag.
US law requires a patented invention be nonobvious, ie, a patent may not be obtained “if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious … to a person having ordinary skill in the art to which the claimed invention pertains.” 35 U.S.C. 103.
The European Patent Office (EPO), on the other hand, requires that patents be “granted for any invention … provided they … involve an inventive step”; inventive step—like nonobviousness—is defined as “having regard to the state of the art, [the invention] is not obvious to a person skilled in the art.” European Patent Convention (EPC), Articles 52, 56.
The UK adopts similar language. Patents Act 1997, §§1(1)(b), 3; see also TRIPS, Article 27.1 and Note 5.
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