Inventive level: When the expert examination does not value the result

Inventive level: When the expert examination does not value the result

The conditions or requirements for patentability have been harmonized at the international level, but this does not mean that they are interpreted equally in each country where they are applied and less so that they are applied correctly. The “inventive level” condition is considered to be the most difficult to assess. As a result of this complexity, there is a risk that a bad evaluation will result in the refusal of the patent application for an invention, which implies, among other things, economic and competitive effects. Many cases of rejection, arguing lack of inventive level, have been or are sustained in the existence of known elements without adequately analyzing the result that is presented with the invention. In many cases, judicial review has resulted in reversing those decisions, educating the scope and meaning of the analysis of the requirement in question. The expert often fails to objectively evaluate the difference between the technical characteristics which are claimed, the result and the state of the art, basing his conclusions – without reasoning with scientific rigor- on pre-existing elements without appreciating the advantageous effects and the solution provided by the invention, without justifying why the invention lacks of an inventive level (why it is “obvious”). Speakers will discuss the criteria and guidelines for the analysis of the inventive level under the “problem-solution” method, the risks of aprioristic and biased evaluation and arbitrariness and will present practical cases of rejection and reversal of rejection. The panel intends to generate reflection around the examination of the inventive level.