Is Commercial Success Still A Central Component Of The Test For Obviousness

A pair of recent court decisions have cast doubt on the long-accepted principle that commercial success is a factor that may be considered when assessing the obviousness or non-inventiveness of a patent.

For decades it has been understood that, though it is not conclusive, commercial success is a secondary consideration on the issue of the obviousness or non-inventiveness of a patent. Even the Supreme Court of Canada has contributed to this principle.¹

Background

In Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., an action alleging both patent infringement and breach of the Competition Act, a prothonotary had bifurcated the issue of liability from the issues of damages or accounting for profits.