MPEP 1878.01(a)(2)
Inventive Step for Purposes of the Written Opinion and the International Preliminary Examination Report

This is the Ninth Edition of the MPEP, Revision 08.2017, Last Revised in January 2018

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1878.01(a)(2)    Inventive Step for Purposes of the Written Opinion and the International Preliminary Examination Report [R-08.2012]

Inventive step is defined in PCT Article 33(3).

PCT Article 33

The International Preliminary Examination

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  • (3) For purposes of the international preliminary examination, a claimed invention shall be considered to involve an inventive step if, having regard to the prior art as defined in the Regulations, it is not, at the prescribed relevant date, obvious to a person skilled in the art.

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PCT Rule 65

Inventive Step or Non-Obviousness

65.1 Approach to Prior Art

For the purposes of Article 33(3), the international preliminary examination shall take into consideration the relation of any particular claim to the prior art as a whole. It shall take into consideration the claim’s relation not only to individual documents or parts thereof taken separately but also its relation to combinations of such documents or parts of documents, where such combinations are obvious to a person skilled in the art.

65.2 Relevant Date

For the purposes of Article 33(3), the relevant date for the consideration of inventive step (non-obviousness) is the date prescribed in Rule 64.1.

The above provisions apply mutatis mutandis to the written opinion of the International Searching Authority. See PCT Rule 43bis.1(b).