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Under the 1990 Act the question to be asked in determining whether or not the claimed invention involves an inventive step is whether the invention would have been obvious to a person skilled in the relevant art. The concept of "obviousness" was introduced by the 1952 Act, but is no longer referred to as a ground of objection.  However, examiners can for practical purposes equate obviousness with lack of inventive step - see Winner & Anor v Ammar Holdings Pty Ltd 24 IPR 137 at page 140 where no distinction was drawn between the concepts of lack of inventive step under the 1990 Act and obviousness under the 1952 Act.

The High Court in Firebelt Pty Ltd v Brambles Ltd [2002] HCA 21; 54 IPR 449 discussed the changes in the legislation between the 1952 and 1990 Patents Acts pertaining to obviousness. The Court noted that the effect of the changes was to relax the rule in Minnesota Mining & Manufacturing Company v Beiersdorf (Australia) Ltd (1980) 144 CLR 253 forbidding the use of prior disclosures not actually proven to be part of the common general knowledge. However, while the prior art base for obviousness expanded in the 1990 Act, the actual test for determining obviousness has not changed.

As a result, precedent for inventive step under the 1990 Act is provided by relevant case law in respect of obviousness. When the term "obvious" is referred to in such precedent, the term "lacks an inventive step" may be substituted.

As to the meaning of the term "obvious":

"The word 'obvious', as Sir Lionel agreed, and as its derivation implies, means something which lies in the way, and in the context of the Act is used in its normal sense of something which is plain or open to the eye or mind, something which is perfectly evident to the person thinking on the subject."

Olin Mathieson v Biorex (1970) RPC 157 at page 188

" 'Obvious' is, after all a much-used word and it does not seem to us that there is any need to go beyond the primary dictionary meaning of 'very plain'".

General Tire & Rubber Company v Firestone Tyre and Rubber Company Ltd [1972] RPC 457 at page 497.

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