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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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) which factors to impede the inventive solution were technically obvious or can be deemed as an commercial deterrent to realize the solution, (8) how commercially or otherwise successful was the inventive solution in terms of exploitation and granted licenses to the right owner, that made competitors to circumvent the original solution with alternatives or improvements[2]. Together with above the above listed original but not non-exhaustive factors for concluding non-obviousness, the 4-step obvious-to-try test of Windsurfing/Pozzoli[3] provides the umbrella which in contrary to the flaws[4] of the Problem-Solution-Approach and the Could-Would likelihood of obviousness as practiced at the EPO shows a broader approach to a wide-ranging variety of inventions[5].

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This said, the determination factors of Laddie’s list over the time became the court’s ratio in a plethora of cases such as Nokia[6], wherein factor (5) as above provided the ratio decidendi, or in Conva[7] as well as Gedeon[8] where the so-called ‘lion in the path’ under the above mentioned factor (7) 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 ...

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