Common General Knowledge not Limited to Being in Australia

Date Published

Note: The information in this part only applies to standard patent applications with an examination request filed on or after 15 April 2013.  For all other standard patent applications, see Common General Knowledge in Australia.

The common general knowledge that can be used in objections of lack of inventive step is not limited to just the common general knowledge in Australia, i.e. there is no geographical limitation on the common general knowledge.  Thus, a publication printed overseas can be relied on as indicative of the common general knowledge.

Likewise, what is admitted as common general knowledge in a specification prepared overseas can be taken to be common general knowledge.  It is the common general knowledge of the person skilled in the relevant art that is taken into consideration, not the knowledge of the person in a specific geographical location.

In the first instance, examiners should proceed on the basis that there is no difference (or no significant difference) in the common general knowledge of the persons skilled in the art in one country from that of their counterparts in another country.  Arguments that a piece of knowledge known to persons skilled in the art located in a particular geographical location is not common general knowledge are, in general, not to be accepted.  This argument assumes the person skilled in the art in one geographical location is unaware of what is well known to others working in the same art in another location.  This would suggest that the person skilled in the art in one location is disconnected from the world at large, which is unlikely in view of modern technology.

Nevertheless, such an argument may be supported by persuasive evidence.  However, care must be taken to distinguish between situations where the knowledge is known to a small number of people and where the knowledge is generated by a small number of people.  While a feature that is well known to a few is not necessarily common general knowledge, it is equally true that common general knowledge is not necessarily defined by the number of people working in the art.  For example, if information arises only from the research of a small number of people, that circumstance does not prohibit that information from being common general knowledge.  The question is whether that information has become part of the technical background of the person skilled in the art.