Chapter 7 Obviousness Jurisdiction-Books Pdf

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7 7 2 1 Confirmatory and Predictable Experiments are not inventive 28. 7 7 2 2 Following the Instructions or Predictions of others is not inventive 29. 7 7 2 3 Sufficiently predictable results are obvious 31. 7 7 2 4 Measuring chemical characteristics 31, 7 8 The Cripps Question 31. 7 8 1 Led Directly and Without Difficulty to the Solution 32. 7 8 2 The Empirical evidence the inventor s actual path 33. 7 9 Obviousness in cases involving experimentation Pre Sanofi 34. 7 9 1 Experimentation 34, 7 9 1 1 If trial and error are required it can t be obvious 34. 7 9 1 2 Experiments with unpredictable results 35, 7 9 1 3 If research was needed the invention was not obvious 35. 7 9 1 4 Cases quoting and following Bayer v Apotex 39. 7 9 1 5 The U K Worth a try test 40, 7 9 1 6 Would not could Worth a Try is not the test in Canada 44. 7 9 2 The U K and U S Obvious to try tests 48, 7 9 2 1 St Gobain U K Obvious to try test means it ought to work 48.
7 9 2 2 The obvious to try test in the U S A 49, 7 10 The Sanofi Obvious to try test 50. 7 10 1 Sanofi Factors to consider for inventions borne by experimentation 51. 7 10 1 1 1 More or less self evident it ought to work 52. 7 10 1 2 finite number of identified predictable solutions 55. 7 10 1 3 nature and amount of effort required routine trials or prolonged and. arduous 55, 7 10 1 4 Motivation in the prior art 56. 7 10 2 Resolution of obvious to try the invention vs obvious it ought to work 56. 7 11 Secondary Considerations 57, 7 11 1 Commercial Success 57. 7 11 2 Awards to the Inventors 58, 7 12 Applying Sanofi under the New Patent Act 59. 7 12 1 Determine obviousness with reference to the claims 60. 7 13 The Wrong Tests 61, 7 13 1 Dissection of Combinations 61.
7 13 2 Ex Post Facto 20 20 Hindsight 62, 7 13 3 Subsequently recognized advantages 63. 7 14 Evidence and expert witnesses 63, 2012 Donald M Cameron. Necessity is the mother of invention, Jonathan Swift. Necessity may be the mother of invention but play is certainly the father. Roger von Oech, I don t think necessity is the mother of invention invention in my opinion. arises directly from idleness possibly also from laziness To save oneself. Agatha Christie1, Agatha Christie An Autobiography 1977 quoted in Anderson et al v Les Machineries Yvon.
Beaudoin Inc 1994 58 C P R 3d 449 per Tremblay Lamer J at p 449. Executive Summary, The Windsurfing case approach, 1 Identify. a the notional person skilled in the art, b the relevant common general knowledge of that person. 2 Identify the invention the inventive concept of the claim in question or if that. cannot readily be done construe it, 3 Identify what if any differences exist between the matter cited as forming part. of the state of the art and the inventive concept of the claim or the claim as. 4 Viewed without any knowledge of the alleged invention as claimed do those. differences constitute steps which would have been obvious to the person. skilled in the art or do they require any degree of invention. Indicators of obviousness, Motivation, o What were the prejudices for maing the invention. Were others moving in that direction, o What were the prejudices against making the invention.
o What was the motivation of the inventor, For inventions resulting from experiments Predictability. o Was it more or less self evident that it ought to work. Empirical evidence, o How easy was it for the inventor Did it take much trial and error. o If there was a long felt need was the invention commercially successful. for reasons other than just marketing, Was it crystal clear plain as day or would the person skilled in the art. without any inventive ability have arrived at the invention directly and without. difficulty, Obviousness 7 1, The third requirement for a patentable invention is that the invention be inventive or non. 7 1 Introduction to Obviousness, 7 1 1 What does obvious mean.
Some courts have described obvious as very plain 2 or something arrived at directly and. without difficulty 3, The classical touchstone for obviousness is the technician skilled in the art but having. no scintilla of inventiveness or imagination a paragon of deduction and dexterity wholly. devoid of intuition a triumph of the left hemisphere over the right The question to be. asked is whether this mythical creature the man in the Clapman omnibus of patent law. would in the light of the state of the art and common general knowledge as at the. claimed date of invention have come directly and without difficulty to the solution taught. by the patent It is a very difficult test to satisfy 4. 7 1 2 What Things are Obvious, Perhaps the best way of determining what is obvious in the context of a patent is to determine. what is obvious in the context of everyday life and apply the characteristics learned from such. an analysis to the context of patents, For example The answer to the question What is 2 2 is obvious likely because a we ve. solved that problem before and we remember analogous to anticipation or b because we are. using common skills the ability to add two numbers in a routine way to come up with the. Then is the answer to the question What is 248 786 also obvious Although it takes a bit. more work the same mechanical arithmetic skills and no creative skills are used Likewise. the solution to that problem is probably obvious Is the same true when much larger numbers. are being added together Probably yes Although the solution is not known before performing. the calculation only routine skills are being brought to bear. The problem comes in knowing how far the analogy can be stretched From these. mathematical analogies can we formulate a general rule that all products of routine tasks are. obvious No This is because routine experiments can sometimes reveal unexpected or. surprising results There is nothing unexpected or surprising in the summation of numbers. What is obvious also changes as human knowledge advances What is the answer to this. question What is the volume being the space occupied by your hand as measured in cubic. centimeters Prior to Archimedes discovering in his Eureka moment that his body. General Tire Rubber Co v Firestone Tyre Rubber Co Ltd 1972 R P C 457 at pp 497. Xerox of Canada Ltd et al v IBM Canada Ltd 1977 33 C P R 2d 24 F C T D per Collier J. Beloit Canada Ltd v Valmet Oy 1986 8 C P R 3d 289 F C A per Hugessen J A at p 294. 7 2 Cameron s Canadian Patent and Trade Secrets Law. displaced an equal volume of water in his bath the problem of calculating the volume of. irregularly shaped objects was difficult if not impossible Today with knowledge of Archimedes. principle it is obvious, 7 1 3 The sunspot analogy. The 2 2 example given above is an example of coming up with an obvious solution by using. everyday skills In the area of patent law our arithmetic skills are considered to be in our. personal toolbox of what is referred to as common general knowledge facts or skills that we. all have available to use, A further example can be the case of the door that closes by itself As a child we learned that.
we can keep our bedroom door open by putting a book in front of it to keep it from otherwise. naturally swinging closed As an adult confronted with a spring loaded door we might try to. use a book to keep that door open recycling a solution we used beforehand If that doesn t. work to keep the door open the obvious solution is to combine our prior solution use a book to. keep a door open with some common general knowledge bigger books weigh more than. smaller books or more books weigh more than lighter books to arrive at the solution of use a. bigger book or use several books In engineering such an approach is sometimes referred to. as the brute force approach if something doesn t work make it bigger. Thus around every old solution we can imagine a halo of obvious solutions that are a. combination of our old solution and our common general knowledge This is analogous to a. sunspot the black central region the umbra in astronomical parlance being our prior solution. and the grey halo surrounding the umbra the penumbra being the region occupied by the. obvious solutions nearby Stretching the analogy further outside of the penumbras in the. yellow region is what is beyond the obvious the inventive. In his book Where Good Ideas Come From The Natural History of Innovation 5 author Peter. Johnson refers to the area immediately surrounding our current state of the art as the. Penguin Group US October 2010, Obviousness 7 3, immediately possible because all the components are available to make the next thing. 7 1 4 Use of Prior Art that is not in the Common General Knowledge. The notional person of ordinary skill in the art posita is not limited to mosaicing a single piece. of prior art with common general knowledge The posita may also combine art that is public but. not commonly known but the court should examine closely as to why such a combination would. be obvious, If one piece of prior art refers to another it may be obvious to refer to the second document 6. Likewise if one or both documents would be found in a literature search of the kind a skilled. person would routinely carry out before attempting to find a solution to the problem the patent. addresses 7, Sometimes art arising after the filing date can be considered as evidence of what was. commonly known or what was part of the state of the art at the relevant time 8. 7 1 5 Analogous solutions Taking ideas from other fields. 7 1 6 Obviousness in Patent Law, Originally the requirement that a patentable invention be inventive or its counterpart non. obvious was judge created Without it anything new and useful would be patentable even. if it was merely a routine improvement over the prior art. Although section 2 of the Canadian Patent Act says that the term invention means any new. and useful art process machine manufacture or composition of matter or any new and useful. improvement in any art process machine manufacture or composition of matter the Courts. decided that in order to be an invention it has to be inventive. The concept makes sense if someone merely makes an obvious change to something that is. old one should not be permitted a patent for such obvious variants of what was old This is. particularly so if the skilled person uses only the tools of his or her trade namely the common. general knowledge known to all in the field of the alleged invention. Scinopharm Taiwan Ltd v Eli Lilly Co 2009 EWHC 631 Pat per Kitchin J 2009 All E R. D 282 Mar at paras 83 84 quoted in Eli Lilly and Company et al v Apotex Inc 2009 FC 991. F C per Gauthier J at para 419, Scinopharm Taiwan Ltd v Eli Lilly Co 2009 EWHC 631 Pat per Kitchin J 2009 All E R.
D 282 Mar at paras 83 84 quoted in Eli Lilly and Company et al v Apotex Inc 2009 FC 991. F C per Gauthier J at para 419, Eli Lilly and Company v Apotex Inc 2009 FC 991 F C per Gauthier J at para 421. 7 4 Cameron s Canadian Patent and Trade Secrets Law. As the court said in Diversified Products v Tye Sil9. There is no specific section on the Patent Act relating to the requirement for. inventiveness or inventive ingenuity but it has been held and is no longer. questioned that by the use of the words invention and inventor throughout the. Act inventiveness or inventive ingenuity is required to obtain a valid patent. Lord Herschell introduced the concept in the late 1800 s in American Braided Wire10 and in. Vickers v Siddell11, In the Crosley Radio case the Supreme Court of Canada adopted the standard previously. adopted by the House of Lords which required a degree of ingenuity to be present 12. Although it has been a component of U K statutory patent law for some time13 it was only. added to the Canadian Patent Act as s 28 3 in 1993 14. The Supreme Court of Canada has recently said that to be valid a claimed. invention must be new that is not previously disclosed whether or not it was. inventive it must be useful and it must possess inventive ingenuity Biolyse. Pharma Corp v Bristol Myers Squibb Co 2005 1 S C R 533 at para 1 2005. SCC 26 The patent monopoly should be purchased with the hard coinage of. new ingenious useful and unobvious disclosure Apotex Inc v Wellcome. Foundation Ltd 2002 4 S C R 153 at para 37 2002 SCC 77 The. requirement that a patent claim which is novel has sometimes been considered. by the courts in terms of its antithesis was the claimed invention anticipated. Diversified Products Corp v Tye Sil Corp et al 1991 35 C P R 3d 350 F C A. 1889 6 R P C 518 at 528, 1890 7 R P C 292 at 305, Crosley Radio Corp v Canadian General Electric Co 1936 S C R 551 S C C per Rinfret J. at p 555 556, As of 1972 s 32 1 f of the U K Patent Act provided. that the invention so far as claimed in any claim of the complete specification is obvious. and does not involve any inventive step having regard to what was known or used before. the priority dare of the claim in the United Kingdom. The subject matter defined by a claim in an application for a patent in Canada must be subject. matter that would not have been obvious on the claim date to a person skilled in the art or. science to which it pertains having regard to, a information disclosed more than one year before the filing date by the applicant or by.
a person who obtained knowledge directly or indirectly from the applicant in such a. manner that the information became available to the public in Canada or elsewhere and. what is obvious in the context of everyday life and apply the characteristics learned from such an analysis to the context of patents For example The answer to the question What is 2 2 is obvious likely because a we ve solved that problem before and we remember analogous to anticipation or b because we are

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