NOVEMBER 2007
Why obviousness is anything but obvious
A world of confusion surrounds the most difficult question in patent law: what is obvious? Gordon Harris compares courts' approaches and seeks common ground
| One-minute read |
| The concept of obviousness has been a ground for invalidating patents since the 19th century, leading to various tests being established by the courts. But there remains much debate and even confusion. This year has seen high-profile cases in the highest courts in the US, the UK, the Netherlands and Australia. These have addressed questions such as who is the skilled person, the danger of hindsight, what prior art should be considered and the place of the commercial context or secondary evidence. In considering these questions, some common ground can be identified, but the courts have not always arrived at the same conclusions – even if they are supposed to be applying the same law. Indeed, the courts may be overstepping the point where their role ends, and the legislators' role begins. |
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