16.6. Standard of the familiar person / informed user: Knowledge base versus prior art base

The familiar person / informed user standard does not determine whether a citation is part of the prior art base.

Example

In Reckitt Benckiser Inc [2008] ADO 1 the critical document was an annual report of the design owner published in England about a week before the priority date​​​​​​​ of the designs. The owner argued that the cited prior art should be excluded from consideration because an informed user (i.e. a person in Australia) would not have been aware of the publication before the priority date. In rejecting this submission the delegate stated (at 28):

… the informed user standard is not a constraint on whether a particular item of the prior art can be considered – its role is limited to the standard to be applied when determining whether the design is distinctive having regard to a particular item of the prior art.

Conversely in assessing distinctiveness we do not necessarily have to consider the whole range of designs the familiar person / informed user would have knowledge of. In particular, an approach like this (‘mosaicing’) is invalid. See LED Technologies v Elecspess [2008] FCA 1941 (at 12):

… a design that combines various features, each of which can be found in the prior art base when considered as a whole but not in any one particular piece of prior art, is capable of being new and distinctive.

In other words, we cannot combine items of prior art to conclude that the design is not distinctive. ​​​​​​

Impression as at priority date

The familiar person / informed user standard is the impression the familiar person / informed user would have formed on the priority date of the design. Therefore, when determining the familiar person / informed user standard, the examiner cannot consider anything that has occurred since the priority date.

Example

Apple Computer Inc [2007] ADO 5 concerned the number of electrical contacts inside a USB connector for a computer. The delegate concluded that at the priority date users of USB connectors never looked inside to see the contact layout. The delegate noted:

I should further emphasize that the standard of the informed user must be applied as at the priority date. [s.15(1)]. If this USB connector became commonplace, it might well be the case that informed users would change their habits in certain environments such that they would look inside a USB connector to assess whether it was a standard four-contact connector, or the ‘enhanced’ nine-contact connector. But at the priority date of the design the USB Type-A connector was, to the best of my knowledge, only available in the standard 4-contact version. And with that connector there was never any reason for the user to look inside the connector and notice the contact configuration.