OBVIOUSNESS: VIDEO | WEEK #7

Hey guys!

This post is going to be a brief summary of a video I found online about Obviousness and the Unified Patents Court! I have included the video I uploaded to my YouTube account below and the link from the actual website of Simmons & Simmons Elexica, a European law firm.

http://www.elexica.com/en/resources/podcast/episode-0272-obviousness-and-the-unified-patents-court

"Problem-Solution Approach"

Although the video is specific to Europe, much of the details they discuss with regards to obviousness are universally applicable. One of the lawyers specifically mentions the "Problem-Solution Approach" to dealing with potentially obvious patents:

1. Start with the closest piece of prior art
• Search for all previous patents that are similar to the patent in question
• The closest piece is easy to find because it is the patent that you have to make the fewest changes to
2. Identify the differences between the new patent and the prior art
• Locate the differences between the patent in question and the closest piece of prior art
• Ask yourself - "What difference does this difference actually make?"
3. Formulate a technical problem
• If the differences between the prior art and the patent in question DOES make some kind of difference, then you need to formulate it as a problem that needs to be solved
4. Determine if the solution is obvious
• The last steps requires the determination of the obviousness of the solution - is the solution an obvious solution to a technical problem?

Haberman vs. Jackel International Example

Also known as the "Anywayup Cup" case - the invention was a baby's drinker cup fitted with a known kind of valve to prevent it leaking. Babies drinker cups had been known for years. Parents all over the world had put up with the fact that if they were dropped they leaked. Nobody had thought to solve the problem. So when the patentee had the technically trivial idea of putting in a valve, there was an immediate success.

Was this patent obvious?

The court found the patent non-obvious, and according to the video, the key was the final step in the Problem-Solution Approach. Objectively, one might think that something so technically trivial would be obvious. However, nobody had ever thought to place a valve in the drinker cups, and the leakage from the cups was a serious problem, which suggests that a POSITA was unable to come up with the invention on their own, thus making the patent non-obvious.

I hope you all found this case as interesting as I did!