Office And Courts Diverge On Obviousness

The Australian courts and the Australian Patent Office continue to have divergent views on the level of obviousness required to invalidate a patent. Whilst the Patent Office has attempted to move Australia towards the European so-called "problem and solution" approach, the courts highlight deficiencies in it and refuse to adopt the Office's preferred view.

In Sigma Pharmaceuticals v Wyeth, [2010] FCA 1211, Justice Jagot posed a series of difficult hurdles to any infringer wishing to revoke a patent for obviousness. Firstly, she discounted the evidence of experts in the area, on the basis that even the fact that there was litigation was likely to give the expert the benefit of hindsight that a solution to the problem they were being asked to consider must exist.