United States:
Patenting Antibodies: Obviousness Considerations
27 March 2018
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
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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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