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Date Published

If a line of development has not been favoured by those in the art, the age of the prior art may give a distorted picture of what is obvious:

"This may act as commercial constraint which will reduce his willingness to embark on certain lines of development. Indeed the cost of retooling may be such that he will not consider the rewards which would flow from the improved product would justify the change. These purely commercial considerations are likely to affect the direction, if any, in which the established manufacturer may go. However they give a distorted picture of what, from a technical and patent point of view, is obvious. As I have said, a new entrant into the trade may well have different commercial constraints. The court has to be alert to the difference between commercial attractiveness and technical obviousness. They are not always the same."

And later, on the age of prior art:

"It is only when the answer to the question "why was this not developed earlier" is "a likely and reasonable answer is that people looking for a way around an existing problem did not see this as part of the answer" that the age of the prior art should play a part in meeting an obviousness attack. If it was likely that in the real world no one was looking for an answer the fact that none was found says nothing about whether the answer proposed in the patent under attack was obvious."

Brugger & Ors v Medic-Aid Ltd [1996] RPC 635 at page 653-655

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