Obviousness — Is The Revocation Bar Being Raised?

Two decisions handed down from the English appeal courts suggest that the manner in which the "obvious to try" test is being applied is raising the bar for patent challengers in demonstrating the skilled person (or team) would have arrived at the impugned invention through obvious routes given certain prior art.

The first case of Apimed Medical Honey Limited v Brightwake Limited [2012] EWCA Civ 5 was handed down in January and concerned an appeal from the judgment of the Patents County Court that the patent was invalid. The appeal was unopposed in the sense that Brightwake had withdrawn from the case because the parties had settled following a finding of non-infringement in the lower court. Hence Apimed appealed only on the invalidity of its patent and the Comptroller of the IPO opposed through the Treasury Solicitor because the case raised sufficiently important issues (namely the undesirability of invalid patents being returned to the register for want of