Patenting Antibodies: Obviousness Considerations

Under 35 U.S.C. § 103, a claim is not patentable if the "differences between the claimed invention and prior art are such that the claimed invention as a whole would have been obvious" to a person of ordinary skill in the art, before the effective filing date of the claimed invention.  The U.S. Supreme Court set forth half a century ago a four-prong test to determine obviousness: (i) the scope and content of prior art, (ii) differences between claimed subject matter and prior art, (iii) the level of ordinary skill in the art, and (iv) objective evidence of nonobviousness, such as long-felt but unsolved need, failure of others, commercial success, unexpected results, and skepticism.  Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).

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*Stacy Lewis is a law clerk at Finnegan.