According to European Patent Office (EPO) rules
How is inventive step assessed?
Examiners use the problem–solution approach, developed in EPO case law:
- Find the closest prior art – the most relevant existing disclosure.
- Define the technical problem – what real advantage or effect does your invention achieve over that prior art?
- Ask: would the skilled person, starting from the prior art, have obviously modified it to solve this problem?
- If yes → no inventive step.
- If no → your invention is inventive.
This is sometimes called the “could–would approach”: it’s not enough that someone could have made your invention; it must also be shown they would have done so, with a clear pointer in the prior art.
Common challenges
- Routine optimisations: Simply making a material a bit stronger, or adjusting a known range, is often obvious.
- Combination of known features: Putting two well-known tools together usually isn’t inventive unless they interact in a surprising way.
- Ex post facto traps: With hindsight, everything can look obvious. Examiners must avoid judging with the solution already in mind.
- Expectation of success: In tricky fields like biotech, if it was predictable that a method would work, it may be deemed obvious.
Pitfalls to avoid
- Claiming an effect without proof: If you say your detergent cleans twice as fast, you need evidence. Otherwise, the “technical problem” may be reformulated more narrowly, making the invention look trivial.
- Ignoring closest prior art: It’s not enough to be different from some earlier product; the examiner will pick the most relevant starting point.
- Overestimating small changes: Minor tweaks like changing colour, shape, or concentration often fail unless they bring an unexpected technical effect.
Practical examples
- Not inventive: Using a touch screen instead of buttons on a known device (obvious substitution).
- Inventive: A touch screen that also recognises pressure and prevents accidental inputs in rain—if no prior art suggests this.
- Not inventive: Lowering the temperature of a known reaction from 200°C to 180°C without unexpected benefit.
- Inventive: Discovering that lowering to 180°C unexpectedly doubles yield and prevents toxic by-products.
Key takeaway
Inventive step asks: “Was it obvious?”
Your invention must not just be new—it must represent a real leap, not a small step. The best strategy is to document surprising effects and technical advantages, so you can clearly show why your invention would not have been the skilled person’s next logical move.
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