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Critically evaluate the factors listed by Laddie J as relevant to deciding whether a claimed invention is obvious to a person skilled in the relevant art. How have they stood the test of time since Haberman v Jackal? Laddie J specifically noted that this list was non-exhaustive. Can you suggest other factors which might reasonably be added to the list?

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Introduction

In Haberman v Jackal[1], Laddie J provided a list of determination factors that set a narrative for an patented invention?s obviousness. Laddie?s factors aim at scrutinizing the invention for (1) the real problem to be solved thereby, (2) how long this problem existed, (3) the significance of problem with regard to commercial benefits and the efforts that have to be made to provide the solution, (4) the publicity of the problem and popularity in society to solve it, (5) what kind of prior art can be deemed to have been known, and how established was the degree of awareness of said knowledge to those that can be expected to be involved to solve the problem, (6) what kind solutions to the same problem (forefront or not) and how close were those to inventive solution at the time to publication of the subject matter, (7) ...read more.

Middle

provided the ratio. In the cases of Grimme[9], and in particular in Schlumberger[10], the time factor and the long-felt-want in combination with the lack of awareness for the skilled man and the discarded prior art in the industry in accordance with factors (2), (4), (5) played a crucial role for the reasoning leading those decisions. In Virgin[11] the driving factor was that the solution was a forefront development in the industry as set out in factor (6). In Wake Forest University[12] factors (5) and (7) were the base for the court?s decision. However, based on decision solely argued on the factor (8) have not been monitored and thus, factors (3) and (8) are so-called secondary indicia which indicate or underline factors (2), (4) and (5)[13] with regard to IPO?s Examination Guidelines[14] which point out that those commercial realities cannot always be divorced from the kinds of practical outcome as illustrated in Dyson[15]. ...read more.

Conclusion

[5] Paul England, 'Obviousness in the new European Order' (2012) 7 11 Journal of Intellectual Property Law & Practice pp 807, 808 [6] Nokia OYJ (Nokia Corporation v IPCom GmbH & Co KG [2012] EWCA Civ 567 [7] ConvaTec Lts and Ors v Smith & Nephew Healthcare Ltd and Ors [2012] EWCA Civ 520 [8] Gedeon Richter plc v Bayer Pharma AG [2012] EWCA Civ 235 [9] Grimme Landmaschinenfabrik GmbH & Co KG v Scott [2010] EWCA Civ 1110 [10] Schlumberger Holdings Ltd v Electromagnetic Geoservices AS [2010] EWCA Civ 819 [11] Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group [2009] EWCA Civ 1062 [12] Wake Forest University Health Sciences v Smith & Nephew Plc [2009] EWCA Civ 848 [13] Ibid supra note 5 p 810 [14] Examining for inventive step, and Assessing obviousness Section 3: Inventive step (July 2013, IPO) <http://www.ipo.gov.uk/practice-sec-003.pdf> accessed on 26 September 2013 para 3.25 [15] Dyson v Hoover [2002] RPC 22 ...read more.

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