Patent obviousness and common general knowledge
Published by a LexisPSL IP expert

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

  • Patent obviousness and common general knowledge
  • Obviousness
  • General principles on obviousness
  • The Windsurfing (Pozzoli) test
  • Pozzoli step 4—hindsight and expert witnesses
  • Inventive concept
  • EPO approach—problem and solution approach (AgrEvo obviousness, technical contribution and plausibility)
  • Obvious to try
  • Reasonable expectation of success
  • Expectation of success
  • More...

Patent obviousness and common general knowledge

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.

The Windsurfing (Pozzoli) test

Taking a structured approach to deciding obviousness is a way of bringing objectivity to the courts’ decisions on obviousness in different technical areas so that companies can see some kind of barometer against which inventions are judged. This is important since most patent invalidity disputes that get as far as the court, will contain obviousness

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