⚡ Quick Summary
If you’re filling out a patent disclosure form and staring at the “Problem/Deficiency” section like it personally offended you, you’re not alone.
This section is not where you hype your invention. It’s where you clearly explain:
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What problem existed in the market
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What products or solutions already attempted to solve it
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Why those solutions were insufficient
Yes, even if your invention feels revolutionary, there was always something before it — even if it was duct tape and hope. The key is framing the gap without accidentally undermining your own patent position.
❓ Common Questions & Answers
1. Why do I have to mention existing products if mine is better?
Because patent law assumes the world wasn’t empty before you arrived. Examiners look for novelty and non-obviousness — which only exist in context.
2. What if the prior solution was terrible?
Perfect. That’s your setup. Describe its limitations objectively, not emotionally.
3. Can I say “no one has ever solved this”?
Almost never. There is usually some workaround, substitute, or partial solution.
4. What if I accidentally describe prior art too well?
Stick to functional description. Don’t improve it for them. You’re not their marketing department.
5. Is this section legal or business-focused?
Both. You’re explaining market conditions and technological limitations in a way that supports legal patentability.
🛠️ Step-by-Step Guide
Step 1: Define the Core Problem
Describe the real-world issue that existed before your invention. Be concrete. Avoid vague phrases like “inefficiency” unless you quantify or contextualize it.
Step 2: Identify Existing Solutions
List actual products, systems, methods, or industry workarounds. Even manual processes count.
Step 3: Explain Their Limitations
What didn’t they do? Where did they fail? Were they costly, slow, inaccurate, bulky, complex, or unreliable?
Step 4: Avoid Emotional Language
No “terrible,” “useless,” or “outdated junk.” Stick to measurable deficiencies.
Step 5: Create Logical Tension
End the section with a clear unmet need — one that your invention naturally resolves.
🕰️ Historical Context
Innovation rarely appears in a vacuum. Throughout industrial history, breakthroughs emerged because prior attempts fell short.
Early automobiles didn’t appear because no one had transportation. They appeared because horses were inefficient for urban growth. Feed, waste, speed limits, and reliability became constraints.
The smartphone didn’t emerge because communication didn’t exist. It emerged because flip phones, PDAs, and laptops solved pieces of the puzzle — but not all of it seamlessly.
Patent law evolved alongside this reality. Examiners don’t ask, “Is this useful?” They ask, “What existed before, and how is this meaningfully different?”
The concept of prior art exists precisely because incremental improvement drives innovation. Many groundbreaking inventions were improvements, not creations from scratch.
Even life-saving pharmaceuticals are often refinements of earlier compounds. The prior solution matters because it defines the technical leap.
Understanding this history helps inventors frame their disclosure strategically: you’re not claiming to invent the problem — you’re clarifying the gap.
🏢 Business Competition Examples
Ride-Sharing Apps
Before Uber, taxis existed. The deficiency? Dispatch inefficiencies, poor transparency, and inconsistent service standards.
Streaming Platforms
Before Netflix streaming, DVDs and cable worked. The deficiency? Physical delays, rigid schedules, and high bundling costs.
Noise-Canceling Headphones
Before active cancellation, passive padding existed. The deficiency? Inability to counteract ambient low-frequency noise.
In each case, prior solutions existed — but they left friction in the system.
💬 Discussion Section
When filling out a patent disclosure form, many inventors make one of two mistakes.
First, they exaggerate. They claim the problem was catastrophic and unsolved. That raises examiner skepticism immediately.
Second, they minimize prior solutions. They pretend nothing existed. That undermines credibility.
The better strategy is balanced acknowledgment.
Describe what the market was doing. Recognize that others attempted solutions. Explain why those solutions didn’t fully resolve the issue.
This approach signals sophistication. It tells the patent attorney and examiner that you understand the ecosystem.
It also strengthens non-obviousness arguments. If multiple imperfect solutions existed, your improvement must have required meaningful innovation.
A well-written problem statement creates a narrative arc: problem → partial attempts → unresolved gap → invention.
That narrative is far more persuasive than “no one thought of this before.”
⚖️ The Debate
Position 1: “Emphasize the Failure of Existing Products.”
Some argue you should strongly highlight the shortcomings of prior solutions. The reasoning is strategic.
The clearer the deficiencies, the clearer the inventive step. By outlining technical flaws in detail, you strengthen the argument that your invention addresses a real, persistent gap.
This method can be powerful when the market struggled for years without adequate resolution.
However, it requires precision. Overstatement risks appearing argumentative.
When done correctly, it builds momentum toward patentability.
Position 2: “Minimize Discussion of Prior Products.”
Others advocate restraint. The concern is that detailing prior art may narrow claim scope or create unnecessary examiner focus.
This conservative strategy emphasizes functionality and keeps prior references general.
It avoids strengthening competitors’ positions or boxing the application into comparisons.
However, too little context weakens your narrative. The invention may appear incremental without justification.
Balance — not avoidance — is usually the stronger approach.
🔑 Key Takeaways
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There is always a prior solution — even if imperfect.
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Describe deficiencies objectively and factually.
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Avoid exaggeration or emotional language.
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Frame your invention as resolving a clearly defined gap.
⚠️ Potential Business Hazards
Failing to acknowledge prior solutions can damage credibility during examination.
Overstating deficiencies may invite invalidity challenges later.
Providing inaccurate descriptions of existing products can create prosecution risk.
Overly narrow framing of the problem may limit claim breadth.
Careless language can unintentionally admit prior art relevance.
🧠 Myths & Misconceptions
Myth 1: “If something existed before, I can’t patent my idea.”
False. Most patents improve on prior systems.
Myth 2: “Admitting prior solutions weakens my application.”
Incorrect. It strengthens your non-obviousness framework when done correctly.
Myth 3: “If I don’t mention it, the examiner won’t find it.”
They will.
Myth 4: “The problem section is just paperwork.”
It shapes your entire patent narrative.
📚 Book & Podcast Recommendations
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Patent It Yourself by David Pressman
https://www.nolo.com -
The Lean Startup by Eric Ries
https://theleanstartup.com -
How I Built This Podcast
https://www.npr.org/podcasts/510313/how-i-built-this -
IP Fridays Podcast
https://www.ipfridays.com
⚖️ Notable Legal Cases
KSR v. Teleflex (2007)
https://www.supremecourt.gov/opinions/06pdf/04-1350.pdf
Established modern standards for obviousness — reinforcing why prior solutions matter.
Graham v. John Deere (1966)
https://supreme.justia.com/cases/federal/us/383/1/
Outlined foundational factors for determining non-obviousness.
Alice Corp. v. CLS Bank (2014)
https://supreme.justia.com/cases/federal/us/573/208/
Reinforced the importance of framing technical improvements clearly.
🤝 Expert Invitation
Crafting a patent disclosure is not clerical work — it’s strategic positioning. The way you describe the market problem influences claim drafting, prosecution strategy, and future enforcement leverage.
If you’d like to refine how you articulate your invention’s origin story, you can schedule a free strategy session at:
For broader innovation strategy insights, visit:
👉 https://inventiveunicorn.com
🎯 Wrap-Up Conclusion
Before you patent the future, you must explain the past.
Your invention exists because something wasn’t working well enough. The job of the problem section is to articulate that gap with clarity, credibility, and strategic restraint.
A strong patent disclosure doesn’t claim the world was empty. It proves the world was insufficient — and that you moved it forward.
