Obviousness

October 21, 2016

FCA Clarifies Test for Obviousness-Type Double-Patenting

2016 FCA 119 - The FCA dismissed the appeal, which alleged that Canadian Patent No. 2,226,784 was invalid on the basis of obviousness-type double-patenting and for lack of utility due to no sound prediction. As a result, the ‘784 patent was upheld.
October 5, 2016

“More or Less Self-evident” Remains the Standard in the Obvious-to-Try Test

2015 FCA 286 - An attack on the Federal Court’s slight rewording of the obvious-to-try test has proven unsuccessful. The FC referring to a 'fair expectation of success'" was not a reviewable error.
August 31, 2016

FCA Confirms Reasonably Diligent Search Correct Test in Obviousness Analysis

2015 FCA 163 - In the obviousness analysis and determining whether a person skilled in the art would have discovered the prior art, the FCA upheld the application of a reasonably diligent search standard.
August 8, 2016

FC Calls on Opening Canadian Patent Prosecution File Histories for Claim Construction

2016 FC 883 - The Federal Court followed the longstanding rule against the use of patent prosecution file history in interpreting the claims of a patent, but made a strong case for why the patent prosecution file history is worth considering, as is common practice in the U.S.
May 6, 2016

Law Remains Unsettled Regarding Appropriate Date for Assessing Obviousness-type Double Patenting

2015 FC 875 - The FC noted that the law is unsettled when it comes to determining the appropriate date for assessing obvious-type double patenting.
April 22, 2016

Federal Court Finds “Rigidification” Patent to be Sufficient but Obvious

2015 FC 997 - The FC found that the invention was merely to add a polymer to the slurry, which was known in the prior art, and to continue to do so until the slurry rigidified. The Court found this solution to be obvious to try, and sufficiently disclosed, even though the meaning of “rigidify” was never made clear.
April 11, 2016

FC Dismisses Prohibition Application – Favours Respondent’s “Blinded Expert” Evidence

2015 FC 570 - The FC favoured the respondent’s "blinded expert" evidence in which the experts provided their opinions before knowing what was claimed in the disputed patents.
June 27, 2015

Patent on Airport Security Trays Proven to have a Surprising Impact on Airport Efficiency

CD 1377 - Security Point Media's patent on “Advertising Trays for Security Screening” was found to be nonobvious considering a number of factors, such as the impact of the invention on the industry.
May 18, 2015

Hydrogen Economy Patent Rejected for Ambiguity

Commissioner’s Decision #1376 - The Application, which sought to patent what is essentially one manifestation of the hydrogen economy, was rejected for ambiguity since the Application’s use of the term “water… inputs” as claimed was not supported by the description. Water is only ever described as taking part in intermediary steps in the claimed method, not as an energy input, as in hydroelectric power.
April 22, 2015

Determining the Common General Knowledge from the Background of a Patent Upheld as a Reasonable Factual Finding

Newco Tank Corp v Canada (Attorney General) 2015 FCA 47 - The Board made a reasonable factual finding when it found that the background knowledge of the person skilled in the art was described in the background information of a patent. This determination was instrumental in the Board’s determination that the patent was obvious.