Is the invention obvious?

Why was it not done before?

4.93 A question that could be asked in response to an inventive step objection is “if it was so obvious why wasn’t it done before?”

4.94 Clearly, this is an ill-founded argument since any invention that had not been done before (that is, was new) would automatically be held inventive. Nevertheless the reasons as to why the invention has not previously been done are a relevant consideration.

4.95 In particular, if the inventor has solved a long-recognised problem by means which others could have used but did not, then there may be an inventive step (Minnesota Mining and Manufacturing Co v Rennicks (UK) Ltd [1992] RPC 331)

4.96 However:

(1) if a long-standing problem has been solved using materials or techniques which have only recently become available in a conventional manner;

(2) if a product has not been made from a particular material or by a particularprocess for reason of cost, and the material or process becomes cheaper  orthe market value of the product increases; or

(3) if a newly-arisen problem is solved by the use of available resources in an obvious way, then there is no inventive step (unless the inventor has been the first to identify the problem);

then it is unlikely that the invention will be considered as having an inventive step