Patents: non-obviousness

From § 103 of the Patent Act:

Two tests: (1) test is T-S-M (teaching-suggestion-motivation)
  • meaning are there teachings, suggestions, or other kinds of motivations in the prior art or previous patents that make the "new" invention obvious?
OR (3) the Graham test (newer approach initiated by SCOTUS saying T-S-M was being too mechanically applied):
  1. Scope and content of prior art
  2. Different between prior art and current claims
  3. Level of skill in art (is the inventor a PHOSITA [person having ordinary skill in the art] or not?)
  4. Secondary considerations:
    • long felt but unsolved need
    • commercial success
    • failure of others
    • other copying (NEWER)
    • others acquiescing by acquiring license (NEWER)
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