Legal Question in Intellectual Property in California

Patentability of device; obvious or no?

I have invented a device which performs a useful function, but one

which I have since discovered that is available as a subscriber-type

service.

Perhaps a good analogy (though unrealistic) would be if there was no such thing as an answering machine, only electronic voice mail available through monthly subscription from the telephone company. Then, I come along and invent the first answering machine. That is to say, I have invented a physical device for consumers to purchase and put in their home, negating the need for voice mail service.

I feel that my device is unique, but can it be non-obvious? Since a similar service is available via subscribership (eg. voicemail), one might argue it is obvious. However, one might also argue that it is non-obvious to embody the service in a machine (eg. the answering machine) which can be placed in the home.

I know I'm being vague here, but could someone provide their opinion on whether or not there is any likelihood that the PTO might grant a patent in this kind of situation?

1 Answer from Attorneys

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