Obviousness under §103 has long been a central consideration in patentability, but the context in which it arises continues to evolve. In 2025, applicants and practitioners can potentially encounter shifts in how obviousness is analyzed and applied, driven by new tools, changing technologies, and developing case law.
While these trends do not make obviousness the dominant issue in examination, they do create new challenges worth understanding — particularly for innovators working in interdisciplinary or rapidly advancing fields.
AI-Driven Prior Art Searching Is Changing How Combinations Surface
Modern search tools, including those enhanced by machine learning, can identify references across technical domains in ways that traditional search strategies may not have captured.
This can lead to:
A. More diverse combinations of references
Examiners may cite art spanning different disciplines or unexpected design spaces.
B. Broader interpretations of what could have motivated a skilled person to combine teachings
When search tools present wide-ranging results, examiners may apply flexible rationales such as design incentive, performance optimization, or common engineering practice.
For applicants, this means anticipating a wider range of potential combinations when drafting claims and specifications.
Examination Trends Highlight Predictability and Technical Reasoning
Recent examination patterns reflect a growing emphasis on:
- predictability of outcome,
- reasoning behind technical choices, and
- whether a person of ordinary skill would have had a reasonable expectation of success.
If an application doesn’t articulate the technical challenges, unexpected results, or non-intuitive aspects of an invention, examiners may be more inclined to view the solution as a predictable variation.
This places added importance on capturing the underlying technical story during drafting — not just the structural features.
Strategic Drafting and Prosecution Approaches for Today’s Environment
To navigate this evolving landscape, applicants can benefit from:
A. Drafting specifications with deeper technical context
Explain not only what the invention is, but why it works and what wasn’t straightforward during development.
B. Including embodiments or data that highlight non-predictability
When feasible, working examples or comparative results can strengthen the record.
C. Foreseeing broader combinations of prior art
Consider potential multi-domain references and indicate technical reasons why they do not provide a predictable path.
D. Challenging reasoning, not just references
Effective argumentation often focuses on the examiner’s logic — particularly whether a combination would have been technically sensible.
Conclusion
Obviousness continues to play a significant role in patent prosecution, and shifts in tools and legal reasoning mean that applicants in 2025 may encounter it in new and more complex ways. By preparing specifications with strong technical detail and approaching prosecution with an awareness of emerging trends, innovators can improve their chances of securing meaningful, durable protection.
As always, thoughtful strategy — both legal and technical — remains essential for navigating the patent process effectively.
Looking to Protect Your Intellectual Property?
Please contact Arlen Olsen at Schmeiser, Olsen & Watts LLP at aolsen@iplawusa.com.
About the Author
Mr. Olsen, a former adjunct professor of intellectual property law, has over 30 years of experience in all aspects of intellectual property law. Mr. Olsen is a founding Partner of Schmeiser, Olsen & Watts LLP and a former United States Patent Examiner. Mr. Olsen has prosecuted numerous patents that have been litigated and received damages of over 60 million dollars. Additional activities include teaching seminars, appearing as a guest lecturer on intellectual property matters for corporations and educational institutions, and evaluating and consulting with clients regarding the scope, enforcement, and protection of intellectual property rights.
