The following is not meant to be legal advice.
To reject a patent application or invalidate a patent based on prior art, there should be: (1) anticipation under 35 U.S.C. § 102; or (2) obviousness under 35 U.S.C. § 103.
The Graham v. John Deere Co. case factors in the obviousness analysis include: (1) the scope and content of the prior art, (2) the level of ordinary skill in the art, (3) the differences between the prior art and the claimed invention, and (4) the extent of any objective indicia of nonobviousness. The obviousness or nonobviousness of the subject matter is determined. Secondary considerations as commercial success, failure of others might be utilized to indicate obviousness or nonobviousness.
Under 35 U.S.C. § 102, there is required a showing that the identical thing was invented earlier in a single piece of prior art. Under 35 U.S.C. § 103, a patent may not be obtained though the invention is not anticipated, if the differences between the subject sought to be patented and the prior art are such that the subject as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which the subject pertains.
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