by Dennis Crouch
I received a number of comments on one line from my post yesterday where I stated:
The law requires that a patented invention represent a significant advance beyond what was previously known in the art.
See Obviousness as a Question of Fact, Patently-O (March 17, 2015).
The basic retort from patent attorneys is that there is no “significant advance” requirement. Rather, the 1952 Patent Act involved an intentional rewriting of the law of invention to focus only on obviousness and remove the “invention” requirement.
When thinking about patent law doctrine, I ordinarily begin with the Constitutional provision that suggests creation of a system that offers exclusive rights to inventors for their discoveries in order to promote the progress of the useful arts. When I speak of an advance or invention, I do so within this Constitutional framework. The idea here is to promote the progress. Now, we might generally argue about whether we care what our long-dead policy predecessors goals for society, but most will still agree that progress in the useful arts of medicine, energy, transportation, communications, manufacturing, etc., continue to be proper goals.
It makes sense that an invention will usually represent an advance that is both new and better than the prior art in some way. However, there will be times when someone conceives of a new product that is worse than the prior art in every measurable way. (E.g., worse performance, higher costs to manufacture, higher failure rate, and worse customer appeal). In certain instances, a company may want to make and sell that more expensive but lower quality product if – for instance – the better product is locked-up by a competitor’s patent. That partial substitute may still be competitive in an otherwise over-concentrated market.
I argue that the invention of a lower-quality and higher-cost product can still represent the type of significant advance that I highlighted above and that the obviousness test is a good measure of that advance.
The worse-invention still represents a new application of technology that would not have been obvious to someone skilled in the art. And that new application fills-out the space of our technological knowledge in a way that can serve as a building block for future innovations. It has happened time-and-again that major successful innovations are built upon a series of innovative but failed endeavors — those “failures” are part of the progress and represent significant advances.
We have a real problem if the system does in-fact offer patents without any invention or any advance. Fortunately, the obviousness test is designed to prevent that from happening. Now, we just have to make sure that the test is applied in a way that lives up to our hopes.
Yup. We are talking about nonobvious improvements in patent law! Good post. Thanks for sharing your thoughts.
I’m not going to read 212 comments to see if someone else already pointed out the following:
Art. I, sec. 8, cl. 8 does not use the word “invention” but rather refers to discoveries. Under this constitutional power, Congress has enacted Title 35.
35 USC 100 defines “invention” and “claimed invention”. 35 USC 101 states the types of inventions that are patentable (or to use the current lingo — “subject matter that is capable of being patented”). Other statutory provisions must also be met for a patent to be granted.
With all respect to Professor Crouch, I suggest it confuses the discussion to argue that the word “invention” includes meanings beyond the definition provided in the statute.
Cuno Engineering is no longer the law. Congress made that clear by passing the 1952 Patent Act. See Federico’s Commentaries.
Anything that meets the statutory definition in 35 USC 100 is an “invention.” Some inventions are patentable; some inventions are not patentable.
John, “New or improved” IS a requirement, but of 101. I agree that whether something novel or obvious has nothing to do with improvement. Whether something is new or improved, though, IS statutory.
Ned,
You are falling back into your old habit of abandoning conversations when the points put on the table are too inconvenient for your position.
Can you please answer the following:
What are the parameters of this 101 newness test that Congress wrote?
How are these parameters different than the newness tests in 102/103?
If Congress did not WRITE parameters, why is it that you think the judicial branch has authority to WRITE parameters?
Anon, I can only repeat to your the original understanding which has been confirmed by Myriad.
The New World is not new even though unknown.
“Improved” requires some actual improvement in quality, efficiency, or the like. The idea came from England.
I think the “framers” thought that patents should be given to those who brought forth new or improved manufactures, etc., with the additional requirement that they be previously unknown.
The obviousness require came much later as a substitute for “improvement.” See, e.g., Hotchkisss. But, strangely, “improved” remains as a independent 101 requirement.
Ned – full stop.
Just answer the questions.
There is NO need for you to abandon the dialogue and try to insert your scripted answers, as I want you to show that you really can think and I want you to address the actual items I have put on the table for discussion.
This should not be difficult if you truly understand the law. If on the other hand you merely have a predetermined set position that you have always “just accepted” without thinking, then your the reason for your reluctance to actually engage the conversation will be clear.
“new or improved manufactures, etc., with the additional requirement that they be previously unknown.”
First of all, its new or improved processes, etc. Manufactures are listed second to last.
Second, why exactly doesn’t new encompass previously unknown? How could something be both previously known and new?
102 defines new Ned.
“102 defines new Ned.”
Les,
Do you notice that much like when you pressed Ned on his “theory” concerning using “ineligible” base material (like wood), that Ned simply disappears from the conversation when he is faced with discussion points that his larger agenda just cannot handle?
Here too: see how he attempts to not answer simple and direct questions with immediate bearing on the issue at hand, and is only too willing to kick up dust and retreat to a different “speaking point” with pre-1952 foreign treatises and US treatises (for which I have previously supplied on point weaknesses in those very items).
He attempts to avoid the discussion points by employing a type of “Internet shout down” of past merely-tangential items instead of being direct and forthright.
Do you think that he really believes that he is f001ing anyone?
I’m sorry anon, but Rich was overruled in Myriad.
I again point out that when “new” was added in 1793, not known or used was retained in the same sentence. Was not considered to be the same as not known or used. It was an absolute requirement of being, in point of fact, new.
Discovery of the New World, or a mineral in nature, are two good examples of something that is not new, but also unknown.
Ned,
You are still falling back into your old habit of abandoning conversations when the points put on the table are too inconvenient for your position.
Please be direct in answering the actual questions that I have put on the table.
There is a reason why the law has evolved and that Congress has taken away the ability of the judicial branch to set the definition of “invention” by the t001 of common law evolution. Your constant emphasis here of wanting that pre-1952 law to be controlling law is simply NOT in accord with actual history and what Congress did in 1952 in reaction to a judiciary that simply became too anti-patent (or do you forget that famous description of “the only valid patent is one that has not yet appeared before us”…?).
Your “selectiveness” is a detriment, not a benefit in our discussions Ned, since I can readily point out the weakness in your desired “state of law” due to your choices of what you discuss and what you refuse to discuss – no matter how many times you simply choose to say the same old (and incomplete) thing, your position remains incorrect.
anon, you are flying in the face of the cannons of statutory construction that construes the meaning of terms at the time they were first introduced.
179o: improved, not known or used.
1793: new.
The statute has remained unamended since, except to carve known or used away into a new 102 in ’52.
Quite the opposite Ned, as my abilities for statutory construction are far superior to yours.
You (conveniently) are also omitting the fact that the single paragraph (pre-1952) was substantially altered in 1952.
The reason for this is clear (hint: it is not the reason, given in dicta by the very same body attempting to hold onto its -pre-1952 authority).
Hey Les, I was talking about the statute as it was in 1793.
Why?
And does that have some baring on:
“why exactly doesn’t new encompass previously unknown? How could something be both previously known and new?”
Les, think about the example given, the New World.
New World — not really new, but truly unknown to the Old World.
“New World — not really new”
Your example isn’t an example. It was not really new, as you point out.
So, I ask again: “why exactly doesn’t new encompass previously unknown? How could something be both previously known and new?”
The new world was previously known and it was NOT new.
Les, the SC held in Myriad that a product of nature was not new under 101.
Whether someone discovered is irrelevant.
Ned –
I believe the Constitution specifically refers to DISCOVERIES.
I submit that there is nothing TO discover, other than products of nature and laws of nature.
So, the Supreme Court is wrong.
But, in any event, that does not answer the question: How could something be both previously known and new?”
Les, Previously known? I’m sorry, did I misread this?
The 1793 read “new” …, and not known or used.
Here it is in full.
“That when any person or persons, being a citizen or citizens of the United States, shall allege that he or they have invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not known or used before the application, and shall present a petition to the Secretary
of State, signifying a desire of obtaining an exclusive property in the same, and praying that a patent may be granted therefor; it shall and may be lawful for the said Secretary of State to cause letters-patent to be made out in the name of the United States, bearing teste by the President of the United States, reciting the allegations and suggestions of the said petition, and giving a short description of the said invention or discovery, and thereupon granting to such. petitioner or petitioners, his, her, or their heirs, administrators, or assigns, for a term not exceeding fourteen years, the full and exclusive right and liberty of making, constructing, using, and vending
to others to be used, the said invention or discovery.”
Note, anon, the word “property.”
Ned,
You are clearly attempting to hold onto a pre-1952 Supreme Court bias against treating process patents as a full and equal statutory category – something Congress also explicitly acted against in the Act of 1952.
You insist on not giving that act it’s full weight when it comes to what Congress did in response to an anti-patent activist Judiciary.
Until you recognize the historical factual basis of what animated the Congress, your continued “spins” will simply fail of their own weight.
From Walker on Patents 1889, Section 2
“§ 2. The word” discovery” does not have, either in the Constitution or the statute, its broadest signification. It means invention, in those documents, and in them it means nothing else. The” discoveries” of inventors are inventions. The same man may invent a machine, and may discover an island or a law of nature. For doing the first of these things, the patent laws may reward him, because he is an inventor in doing it; but those laws cannot reward him for doing either of the others, because he is not an inventor in doing either. The statute provides that patents may be granted for four classes of things. These are arts, machines, manufactures, and compositions of matter. None of these things can be originally made known by discovery, as our continent was. They are not found, but are created. ‘They are results of original thought. They are inventions. Laws of nature, on the other hand, can never be invented of man. though they may be discovered by him.
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Authors are rewarded for their writings and inventors for their discoveries. The word should be understood in its older meaning of things revealed as in legal discovery. Authors produce written work, whereas when the Constitution was written inventors would produce writings, drawings and often models. A more generic term was needed, and “discoveries” means the things that the inventor reveals to the government as the basis of the application for a patent. It less clearly means discovery in science or technology in the modern scientific sense. If you are looking for more modern language, revelations could express the meaning better.
Paul, in 1793, Jefferson rewrote the statute that is now 101/102. When he did so, he removed “discovered” and substituted “new.” As well compositions were added.
Improvement was in the 1790 statute.
What your take on this?
Check Curtis for the statutes. link to books.google.com
PC –
What is there to discover other than natural laws and products of nature?
“[W]ould not have been obvious to someone skilled in the art….” I’m sorry, but I always believed (contrary to much court dicta) that an invention would be patentable under 35 U.S.C. Sec. 103 unless it “would have been obvious to a person having ordinary skill in the art….” Under 35 U.S. C. Sec 112 (a), we practitioners write patents “in such full, clear, concise and exact terms to enable any person skilled in the art…to make and use the same.”
Skilled and ordinary skill are two quite different standards.
Richard,
An interesting thought, albeit one that does not survive scrutiny.
Please elucidate this “quite” difference.
What is the level of the “skilled” in the first instance? Someone minimally skilled? Someone at the top of the skilled range? Or is it, by default, the nominal middle if the range – the ordinarily skilled point?
Alas, the standards are not different at all after all.
If it is any consolation, others have attempted to make arguments in order to try to decouple what is not decouple-able. Notoriously, I can think of one paper in particular by Lemley and Burk, but, well, the bias there is more than self-evident.
In contrast, you might be interested in a paper by Jonathan Darrow identifying the danger of the seemingly unchecked “scope creep” of making the very act of inventing be a common or ordinary thing:
link to jolt.law.harvard.edu
One should note that the “slippery slope” of making invention be ordinary was expressly repudiated by Congress in 1952 when they overruled the Court’s writing into patent law of the Flash of Genius.
History does indeed try to repeat.
Gotta love the self-induced editorial pain.
Nine years and running, now with Malcolm wannabes.
Great job!
>>now with Malcolm wannabes.
I know. It is bizarre.
What do you expect when you let that type of thing fester?
This would not be an active question if we had a Patent Office (from examiners on up through APJs) and courts (District through Appellate and SCOTUS) that rationally and actively policed the boundaries of the system to prevent gobs of trash from issuing as patents, and which gave us all a measure of consistent, top-to-bottom doctrinal predictability. But we don’t have any of that. In certain arts getting a patent is now a lottery; figuring out how the courts are going to treat a patent entails expensively buying into yet another lottery, and our Congress lacks the combination of wisdom and will to set matters straight.
Agreed.
Today’s offensive (IMO anyway) litigation.
What is this patent? Ineligible under 101? Obvious? An “improvement” or just another way to present map data? Actual innovation that helps society?
Should anyone have to pay a million bucks to defend themselves from it?
I report, you decide….
US6397143
We’re working on building a “forum” for the site that allows users to create their own threads and topics.
Awesome!
They can work well or they can become monster versions of the 300-400 comment threads here, so your 101 forum will end up with 40,000 comments- but at least all in one place and with good searching and tagging, may end up very useful indeed.
Maybe anon could have his own pinned forum for his (or her) 32.3% of site traffic….
Nah – I’m not into the drive-by monologuing.
Under European practice, claimed subject matter does not have to represent an improvement over the closest prior art: a technical problem is solved by the addition of further alternatives. It is extremely common for patents to be granted on that basis during examination proceedings and to be upheld in opposition proceedings.
An invention that provides a mere alternative is treated less advantageously when considering patentability over a combination of references than an invention that can be shown to provide an improvement. Nevertheless many objections based on combinations of references fail to establish the obviousness of claimed subject matter for which no advantage can be found.
There is, to my knowledge, no reason why the same principles should not apply in the US.
They do.
The addition of a further alternative can be labelled as “new” (or perhaps more accurately as “new enough” given the combination of 102 and 103 that controls that determination).
It is clearly a legal error to suppose some sort of “new” and different legal requirement in 101, which as everyone knows (or should know) does not speak as to what that requirement would be or how that requirement would be met were one to attempt to read into 101 that, um, “interpretation.”
101 was meant as a wide open welcoming gate with two (and only two) relatively easy requirements:
1) is the utility (a low standard) the type of utility that falls to the Useful Arts?
2) does the invention as claimed fall into one of four broadly defined categories?
That’s it.
It is only with the Supreme Court mucking about with its philosophical finger in the wax nose of law, attempting to hold onto a power that Congress removed in 1952 that we see so much mischief afoot.
As I have pointed out in other sections of the statutory law, the ability of one branch of the government to share its authority is a well recognized – albeit limited – constitutionally sound manner of applying law. But it takes direct words with proper guidance and limitations for such to survive a critical review of constitutionality.
Contrast the direct words of 35 USC 283 (proper allocation of authority from the legislative branch to the judicial branch) with the direct words of 35 USC 101 (NO words allowing the judiciary to write law in any sense of common law evolution).
The option to the Court on ANY question of comstituionality of the statutory law of patents simply does not include writing the law differently.
Reason? Paul, it is in the statute.
Yes Ned – the statute (not the Justice mashed nose of wax).
When all else fails, read the actual words of the statute.
Neither “significant advance” nor “invention” are in the Constitution. Article I, Section 8 only mentions “Discoveries.” Notwithstanding, Congress added “invents or” to “discovers” in Section 101. Under standard rules of statutory construction, “invents” must have a different meaning than “discovers” and does not appear to have Constitutional authorization.
I haven’t researched this issue. Is there support for equating “invents” with “discovers” or defining the two terms in accordance with Article I, Section 8?
Beginning from square 1, the only requirement for patentability is utility requirement in 104. But it might become necessary, in light of the prior art, that there is shown some significant advancement to show non-obviousness. Indeed, it seems that the patentee in the case concedes as such, as it was his only defense to a 103 rejection.
“But it took us two years!”, yeah, ok, but what did you actually do in those two years? If you made a microprocessor that can do it in the first month but spent 23 months perfecting it, not sure if you deserve a patent.
I think “significant advancement” are considerations for 101 and 102. “Something more than a computer and ‘apply it'”, and/or “this is different from the prior art because it does X and the prior art doesn’t.”
The reason is , and Dennis is right, it comes back to the Constitutional: “promote the sciences.”
J, “Beginning from square 1, the only requirement for patentability is utility requirement in 104.”
Is this a plurality of typo’s or purposeful misquotes?
Oops. My writing here is always worse than when someone’s legal rights are on the line. Let me try again.
At the start, the only “advancement” requirement is the utility requirement in 104.
The terms “significant advancement” are not found in the Constitution or the US Codes. Therefore, these not necessary. I can’t even fathom why we’re discussing this. There is no requirement for an advancement to be “significant”.
Furthermore, why do “non-significant” advancements not “promote the sciences”? For instance, you create a drug that will keep people alive a year longer (or cure symptoms) for people who have a particular disease, but only 1 in 100 million have that disease. This is not significant, but is still patentable.
And how does one define what a “significant” advancement even is? In the example I just gave, could one argue that this drug is a “significant” advancement since basically no one is affected? For those people, it’s significant, but it’s meaningless the broad scheme of things.
Let’s look at other examples. Say you’ve developed an improvement to a compressor for a refrigerator that will save a few watts of power per year. Is that significant? For a single fridge, I’d say no, but for 100 million fridges in the US, I’d say yes. Now, what happens if it causes the price of the fridge to increase by $100? That means the fridge costs more, which means the “significance” for a single person buying the fridge is even less than it was. But the overall benefit to society is still there for power usage anyway (but there is a detriment of increased cost).
This is why the term “significant improvement” is useless. It can’t be defined, and even if it could be defined, it’s not a requirement for patentability.
Just bizarre the way people want to raise the bar. I guess it is human nature to judge others and feel they are inadequate. Weird. It is the flash of genius syndrome.
Bizarre that you want to lower the bar. I’m not saying (anymore 🙂 ) its a bright-line here. Mine is a flexible approach consistent with Supreme Court precedent (KSR, . Others still want “some motivation or suggestion to
combine the prior art teachings” or some other bright-line rule.
KSR stated, “[I]f a technique has been used to improve one device, and a person of ordinary skill of the art would recognize [notice the past-tense here, suggesting hind-sight is appropriate] that it would improve similar devices in the same way, using the technology is obvious unless its actual application is beyond his or her skill.” Thus, a substantial improvement is required in such a case.
Finally, there is no need to go to psychoanalysis. It is unhelpful to the tone of this message board.
C’mon ya’ll, obviously he’s tr 0lling. “Section 104…hindsight.”
Pretty funny though!
…so that is what this site has in regards to America’s leading source.
Thanks Go.
What did I do? Lighten up. I’ve seen you be humorous, sort of, on occasion. Dots and dashes and what-not.
Why are you asking me to “lighten up” when I am thanking you for your post?
You are spot on here.
My bad, thought you were being sarcastic.
>>Finally, there is no need to go to psychoanalysis.
Actually the opposite is true. Anyone that has worked in innovation for real knows that hindsight is a massive, massive issue. That humans are terrible at evaluating how hard something was to figure out once it was figured out.
It has been a long time since I’ve read philosophy, but when I did I remember that this was recognized long, long ago as a human failing. And that many scientist noted that it was a spiritual experience to have figured something out for the first time before any other human.
No this is not a minor point. Rich thought it was a massive point too and so does any serious patent scholar.
The pyschoanalysis you used had nothing to do with hindsight, you wanted to say that I must feel inadequate, which 1) uncalled for and 2) incorrect. See, you forget that I fundamentally come at patent law differently than you. Patents are not derived from natural or common law, in my opinion, so I don’t think I’m tearing anyone down or doing violence to their rights (so long as there is due process). I am working from a standpoint on what is in the best interest of the public and the progression of the arts. Now, I know you disagree with my approach to patent law, but before you try to look deep into my soul, Sigmund Freud, maybe you should consider the broader picture from where I am coming from.
Anyways, to the point of hindsight, where you misunderstand is that how hard it was to figure something out for a particular person is a secondary consideration. I advocate an objective analysis and use of common sense. That is what KSR held. As much as we all love Judge Rich, and he was brilliant, he was a circuit court judge. KSR is from the Supreme Court, and the Federal Circuit is bound by KSR. It is controlling law:
“The Court of Appeals, finally, drew the wrong conclusion from the risk of courts and patent examiners falling prey to hindsight bias. A factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning. See Graham, 383 U.S., at 36, 86 S.Ct. 684 (warning against a “temptation to read into the prior art the teachings of the invention in issue” and instructing courts to “ ‘guard against slipping into use of hindsight’ ” (quoting Monroe Auto Equip. Co. v. Heckethorn Mfg. & Supply Co., 332 F.2d 406, 412 (C.A.6 1964))). Rigid preventative rules that deny factfinders recourse to common sense, however, are neither necessary under our case law nor consistent with it.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421, 127 S. Ct. 1727, 1742-43, 167 L. Ed. 2d 705 (2007).
So, once again, flexible approach. Disagree with it if you want, that is what makes debate fun, but I don’t understand the “I’m smarter than you” tone.
In summation, obviousness necessarily has some hindsight. If we are looking to reject something for obviousness under 103, it necessarily means that we concede it is novel under 102. I mean this sincerely: I’d like to have a rule articulated from you on how to enforce 103 without relying on a determination on how new it is.
“ee, you forget that I fundamentally come at patent law differently than you. ”
What ever “direction” you are coming from, you are getting the statutory law fundamentally wrong.
You do know that Judge Rich helped write the actual law, right? And that this statutory law is NOT subject to common law development by the Supreme Court, right? And you do get the fundamental difference between statutory law and common law and the notion of separation of powers, right?
Your direction of coming at patent law is just not all that helpful.
You took my statement out of context to pick a fight, and I’m not going to go into philosophical jurisprudence with you right now.
Is obvious defined in 103? No? Ok, then statutory interpretation is necessary.
Still waiting on that rule or principle to implement 103 that doesn’t rely on novelty…
Night,
I only think hindsight is a massive issue to the extent you think inventors are being unfairly denied patents based on an Examiner/Court’s improper use of hindsight.
I, for example, believe the opposite is true. Too many inventions pass 103’s still very low bar.
Sort of on board with MM, burden should be on the applicant to show nonobviousness (that standard is already basically there in some arts). Each application should have a section explaining why the results of the invention are unexpected or whatever argument they want to make.
“…burden should be on the applicant to show nonobviousness…”
The problem with that proposal is that 1) it’s not the law, 2) has never been the law, and 3) will never be the law.
“…(that standard is already basically there in some arts).”
Really? Which arts are those?
While I don’t agree that the burden should always be on the applicant to show nonobiousness, there is an informal presumption against the applicant if the invention is just combing known elements of related patents.
“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR, page 12 of the slip opinion.
There is no presumption, formal or informal, against the applicant. The burden is on the examiner. Always.
1. I said “should.” So, you’re 1, 2 and 3 aren’t really responsive.
2. Key in on the word “basically.”
With all due respect, my ever polite friend, that is some seriously WEAK wishywashiness there.
Take a stand and defend it. If you can’t (which you can’t) then recognize why.
The mealy “sort of” and “basically” contrast with your assertion of “that standard IS”
You couch your terms far too much and mix up what you “want” with what IS, then seek to weasel out of any reply that points this out.
That’s just not helpful for anyone – for the way things are, OR the way you would like things to be.
Anon,
Your point is well taken. Here, I think AAA JJ was just being a bit of a j erk, so I wasn’t inclined to give him the benefit of the doubt. Still, I hear what you’re saying.
Clearly Go, your belief system is hindering your appreciation of what the law actually is. Your “should haves” make nice opinions about something other than the real law, but all too often you get clouded and confused between the real law and this other wishful thinking law that you imagine up.
Dennis –
If you use advance in a way that encompasses worse….well, while you may be your own lexicographer, “any special meaning assigned to a term needs to be clearly set forth in the specification.
Given the definition you now make explicit, I would suggest substituting “new.” As, it will lead to less confusion.
Tangentially, I would submit that an invention can also be alternative to, but on par with the prior art.
Furthermore, beauty is in the eye of the beholder. What may be an advance to one (e.g., because it is less expensive) may be a downgrade to another (e.g., because it does not perform as well). Whether it is an advance or not then becomes a debate, and lord knows we have enought of those…
Les: beauty is in the eye of the beholder.
That’s why subjective aesthetic limitations should present serious problems to utility patent claims, and they often do.
What may be an advance to one (e.g., because it is less expensive) may be a downgrade to another (e.g., because it does not perform as well).
That’s true. But patent law already puts reasonable limits on the sorts of “unexpected results” that one can present to overcome a prima facie obviousness case.
For example, if my improved hamster food is otherwise obvious, the fact that it “could result in a consumer savings of forty cents over five years for an owner of a long-haired hamster who is currently feeding with Brand X” isn’t going to cut the mustrd for the purposes of obtaining a patent on that “improved” food. And it shouldn’t. “No patent” is the correct result in such a case.
Whether it is an advance or not then becomes a debate
Are you suggesting that evidence of some improvement over the prior art can’t be a requirement for a patent because it’s “too complicated”? If so, I’m not buying it.
Les, Buckets.
1. 101 requires an improvement (or new).
2. 102 requires “not publicly known.”
3. 1o3 requires the 1) the invention not be obvious to, and 2) to be within the skill of, a person of ordinary skill in the relevant art.
To say that 103 does not require a showing of improvement does not end the statutory inquiry. “Improvement” and “useful” cannot mean the same thing.