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Nonobviousness
The U.S. law is as follows on nonobviousness:
Sec. 103 of 35 U.S.C. . Conditions for patentability; non-obvious subject
matter
- (a) A patent may not be obtained though the invention is not identically
disclosed or described as set forth in section 102
of this title, if the differences between the subject matter sought to be
patented and the prior art are such that the subject matter 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 said subject matter pertains.
Patentability shall not be negatived by the manner in which the invention
was made.
- (b)
- (1) Notwithstanding subsection (a), and upon timely election by the
applicant for patent to proceed under this subsection, a
biotechnological process using or resulting in a composition of matter
that is novel under section 102
and nonobvious under subsection (a) of this section shall be considered
nonobvious if -
- (A) claims to the process and the composition of matter are
contained in either the same application for patent or in
separate applications having the same effective filing date; and
(B) the composition of matter, and the process at the time it
was invented, were owned by the same person or subject to an
obligation of assignment to the same person.
- (2) A patent issued on a process under paragraph (1) -
- (A) shall also contain the claims to the composition of matter
used in or made by that process, or
- (B) shall, if such composition of matter is claimed in another
patent, be set to expire on the same date as such other patent,
notwithstanding section 154.
- (3) For purposes of paragraph (1), the term ''biotechnological
process'' means -
- (A) a process of genetically altering or otherwise inducing a
single- or multi-celled organism to -
- (i) express an exogenous nucleotide sequence,
- (ii) inhibit, eliminate, augment, or alter expression of an
endogenous nucleotide sequence, or
- (iii) express a specific physiological characteristic not
naturally associated with said organism;
- (B) cell fusion procedures yielding a cell line that expresses
a specific protein, such as a monoclonal antibody; and
(C) a method of using a product produced by a process defined
by subparagraph (A) or (B), or a combination of subparagraphs (A)
and (B).
- (c) Subject matter developed by another person, which qualifies as prior
art only under subsection (f) or (g) of section 102
of this title, shall not preclude patentability under this section where the
subject matter and the claimed invention were, at the time the invention was
made, owned by the same person or subject to an obligation of assignment to
the same person.
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