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Unlike novelty, there are many tests applied by the courts to assess inventive step.

In Winner & Anor v Ammar Holdings Pty Ltd 25 IPR 273 at page 294, Cooper J stated:

"In order to ascertain whether or not the subject matter sought to be patented was beyond the skill of the calling, the courts have adopted a number of different approaches directed to the same end: for example, was the invention obvious or not?; does the invention solve an important problem "unsuccessfully attacked by previous inventions"? (Wood v. Gowshall (1937) 54 RPC 37 at 39)."

The following tests typify the basic approaches which the courts have used to establish obviousness:

"The test is whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not."

Aickin J in Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd (1981) 148 CLR 262 at page 286.

"was so obvious that it would at once occur to anyone acquainted with the subject, and desirous of accomplishing the end."

Allsop Inc & Another v Bintang Ltd & Ors 15 IPR 686 at page 701.

"Would the notional research group at the relevant date in all the circumstances ... directly be led as a matter of course to try [the invention claimed] in the expectation that it might well produce [a useful desired result]."

Olin Mathieson v Biorex (1970) RPC 157 at page 187, and approved by the High Court in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; (2002) 212 CLR 411.

"In the case of a combination patent the invention will lie in the selection of integers, a process which will necessarily involve rejection of other possible integers. The prior existence of publications revealing those integers, as separate items, and other possible integers does not of itself make an alleged invention obvious. It is the selection of the integers out of, perhaps many possibilities, which must be shown to be obvious."

Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd (1980) 144 CLR 253 at page 293.

"so easy that any fool could do it"

Edison Bell v Smith (1894) 11 RPC 389 at page 398.

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