VPG Systems UK Limited v Air-Weigh Europe Limited, UK, High Court (Intellectual Property Enterprise Court), HHJ Hacon, 1 July 2015
On 1 July, HHJ Hacon ruled that the patent in suit was invalid for lack of inventive step. The relatively short judgment is of interest as it records the judge’s exposition of the English approach to answering the statutory question of what is obvious under the established Windsurfing/Pozzoli analysis generally adopted by the English courts.
Although many readers will be familiar with the four-step Windsurfing/Pozzoli approach to the obviousness question, it is worth setting out the steps:
(1a) Identify the notional “person skilled in the art”
(1b) Identify the relevant common general knowledge of that person;
(2) Identify the inventive concept of the claim in question or if that cannot readily be done, construe it;
(3) Identify what, if any, differences exist between the matter cited as forming part of the “state of the art” and the inventive concept of the claim or the claim as construed;
(4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?
In relation to the second step, HHJ Hacon noted that the inventive concept is not the same as the inventive step.