Patent obviousness and common general knowledge
Patent obviousness and common general knowledge

The following IP guidance note provides comprehensive and up to date legal information covering:

  • Patent obviousness and common general knowledge
  • Obviousness
  • The Windsurfing (Pozzoli) test
  • EPO approach—problem and solution approach (AgrEvo obviousness and technical contribution)
  • Obvious to try
  • Obviousness over prior art or prior use (and common general knowledge)
  • Obviousness over common general knowledge only
  • Collocations or combinations of things already known
  • 'Long felt want' and 'if it was obvious, why had no-one done it before' arguments

Obviousness

General principles on obviousness

In order to obtain and keep a patent, it is not enough that the invention is new because no-one else had done it before. It is also necessary that the invention is not an obvious modification of what has been done before. Obviousness is important because it is a ground on which the grant of a patent may be refused. Once the patent is granted, obviousness is also a ground on which the patent could be declared invalid and revoked, ie removed from the register of patents. The basis for this is section 3 of the Patents Act 1977 (PA 1977), which says that an invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art having regard to any matter which forms part of the state of the art. For an introduction to these issues, including some details about the 'skilled person' see Practice Note: Patent invalidity and revocation—Lack of inventive step (obviousness).

The Windsurfing (Pozzoli) test

The touchstone for deciding obviousness was set out in the Windsurfing case and then modified slightly in Pozzoli v BDMO. The courts have stressed time and again that the Pozzoli test is not to be looked at rigidly as the be-all and end-all of deciding