What is Common General Knowledge?

Date Published

In Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Limited (1980) 144 CLR 253 at page 292, Aickin J. stated:

"The notion of common general knowledge itself involves the use of that which is known or used by those in the relevant trade. It forms the background knowledge and experience which is available to all in the trade in considering the making of new products, or the making of improvements in old, and it must be treated as being used by an individual as a general body of knowledge."

This "notion of common general knowledge" has been expanded upon by some subsequent decisions as discussed below.

ICI Chemicals & Polymers Ltd v Lubrizol Corp 45 IPR 577

Emmett J stated:

"112 The common general knowledge is the technical background to the hypothetical skilled worker in the relevant art. It is not limited to material which might be memorised and retained at the front of the skilled workers mind but also includes material in the field in which he is working which he knows exists and to which he would refer as a matter of course. It might, for example, include:

  • standard texts and handbooks;

  • standard English dictionaries;

  • technical dictionaries relevant to the field;

  • magazines and other publications specific to the field."

Bristol-Meyers Squibb Co v F H Faulding & Co Ltd 46 IPR 553

Black CJ and Lehane J stated:

"If a patent application, lodged in Australia, refers to information derived from a number of prior publications referred to in the specification or, generally, to matters which are known, in our view the Court - or the Commissioner - would ordinarily proceed upon the basis that the knowledge thus described is, in the language of sec 7(2) of the 1990 Act, part of "the common general knowledge as it existed in the patent area". In other words, what is disclosed in such terms may be taken as an admission to that effect."

Note: The requirement that common general knowledge be restricted to that which existed in Australia was removed from sec 7 for standard patent applications with an examination request filed on or after 15 April 2013.  However, the principle expressed in the above passage has not changed for such applications.

However, the occurrence of the word "ordinarily" should be noted in the above passage. Thus, each situation must be assessed on its merits - see, for example, Beissbarth GmbH v Snap-on Technologies Inc. [2001] APO 20 and BHP Steel (JLA) Pty Ltd v Nippon Steel Corporation [1999] APO 69.

Aktiebolaget Hassle and Astra Pharmaceuticals Pty Limited v Alphapharm Pty Ltd 51 IPR 375

Wilcox, Merkel and Emmett JJ stated:

"71 While manufacturers' literature may well play an important role in the work of a hypothetical formulator, as Lehane J observed at para 42 [of the decision under appeal], in the light of the authorities it would be a "bold" submission to contend that material, which is not part of common general knowledge, can be relied upon to determine the question of obviousness. Nevertheless, by a process that his Honour characterised as taking the routine steps that the hypothetical formulator would take for the purpose of formulating a drug, such documents were held to be admissible for the purpose of raising "general ideas".

72 If that process were permissible, the concept of common general knowledge would lose much of its significance. If it is shown that the particular skilled worker in the field would, as a matter of routine, read literature beyond the common general knowledge of the field, the distinction becomes quite meaningless. The question is not whether a skilled worker conducting a literature search would find pieces from which there might have been selective elements which make up a patent - Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd (1980) 144 CLR 253 at 293. What might be found by a diligent searcher is not the same as "common general knowledge".  

73 That is not to say that the whole of the content of "common general knowledge" need be within the conscious awareness of the hypothetical non-inventive skilled worker. For example, there may be publications of technical and detailed information that are habitually consulted by the hypothetical skilled worker. Notwithstanding that the hypothetical skilled worker would not have the whole of the contents of such reference material in his or her mind, such information should be regarded as part of common general knowledge.

74 Another area where it may be permissible to rely upon information that is not part of the common general knowledge is where the hypothetical addressee, faced with a problem, would resort to information that is fundamental to understanding the nature of the problem, if this were found to be a routine step that would have led from the prior art to the invention: cf Wellcome Foundation at 286 per Aickin J. Such information would include information about the basic characteristics of a drug for which a formulation is to be found."

This decision of the Full Federal Court was appealed to the High Court (Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; (2002) 212 CLR 411), and in this aspect the High Court appeared to leave untouched the decision of the Federal Court. It merely stated:

"Their Honours correctly held, contrary to what had been decided by the trial judge, that it was impermissible to have regard to documents that would have been read merely for "general ideas".