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Australia's High Court weighs in on obviousness

May 25, 2007
Post by Blog Staff

There is a good post over at the Patent Prospector about a decision by the High Court of Australia (the equivalent to the U.S. Supreme Court) regarding the issue of obviousness in patent law. One notable passage:

as a basic premise, obviousness and inventiveness are antitheses and the question is always "is the step taken over the prior art an 'obvious step' or 'an inventive step'"? An inventive step is often an issue "borne out by the evidence of the experts". There is no distinction between obviousness and a lack of inventive step. A "scintilla of invention" remains sufficient in Australian law to support the validity of a patent.

Based on this, it appears more difficult to show obviousness in Australia than in the United States. Also, in Australia, obviousness is a question of fact, not a question of law:

Broadly speaking, the question is not a question of what is obvious to a court. As well as being a question of fact, the question of determining whether a patent involves an inventive step is also "one of degree and often it is by no means easy", because ingenuity is relative, depending as it does on relevant states of common general knowledge.

This is in contrast to the United States where obviousness is a question of law based on underlying factual inquiries. There are more interesting quotes and commentary over at the Patent Prospector, and it's a good read for those who either have or are interested in patents in Australia.


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