5.3.1 Formalities checking

Overview

Subsections 7(2) and 7(3) govern the types of information which can be used for an assessment of inventive step and how the information can be used.  The information must have been available before the priority date of the claim and includes:

• common general knowledge (see 6.5.2.4 and 6.6.6.4); and
• publicly available prior art (see 6.6.4.1).

The amendments brought about by the Raising the Bar Act 2012 made the following information available for assessing inventive step:

• common general knowledge which is known to all workers in the relevant art in every part of the world; and
• any document or use which was publicly available anywhere in the world.

The common general knowledge may be considered together with:

• A single piece of prior art information; or
• A combination of two or more pieces of prior art information, provided that the skilled person could, before the priority date of the claim, be reasonably expected to have combined them.

While the information available for assessing inventive step has broadened following the Raising the Bar Act 2012 amendments, the test is still applied in the context of what the skilled person would have known and done before the priority date of the claim.  The inventive step test will continue to take account of the nature and relevance of the prior art in the context of the problem the invention was seeking to solve.

​​​​​​​When assessing for inventive step, it is important that the benefits of hindsight are avoided.