It is established practice to judge the inventive step of an invention using the problem-solution approach developed within the European patent office. Under this approach, a claimed invention has to add an extra feature to the closest prior art. This additional feature defines the problem to be solved by the person skilled in the art. Starting from the closest prior art and facing the problem to be solved, the skilled person has to find a technical solution for the problem. Whether or not he can do so is part of the inventive step discussion.
In a recent decision (Bussink v KMG) the Court in The Hague gave its own view on the definition of the problem to be solved. Bussink is the proprietor of a European patent concerning a fair carousel with an arm that swings 360 degrees around a horizontal axis. At the end of the arm a passenger seating facility is mounted. The seating facility is rotatable with respect to the arm, and the seats are mounted on hinges.
Parties agreed on D1 as the closest prior art, which was also acknowledged in the patent. D1 shows a swing arm with rotating mounted seats at its end. The patent description asks the person skilled in the art to "increase the attractiveness" of the carousel. According to KMG, this cannot be the problem to be solved because it is not a technical problem. The Court follows this in its decision and defines a different problem: to provide movement in a third dimension. The technical solution to the problem is provided by the invention claimed.
Persons skilled in the art are long since known to provide technical solutions for non-technical problems, such as "producing more cost effectively" or "providing a more attractive appearance". It seems that the Court in the Hague has now limited this to purely technical problems.
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Annemie Jaeken |
Vereenigde
Octrooibureaux NV
Johan de Wittlaan 7, 2517 JR The Hague
The Netherlands
Tel: +31 70 416 67 11
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