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« Conference & CLE Calendar | Main | ToolGen Files Opposition to CVC Substantive Preliminary Motion No. 3 to Add Claims in ToolGen Patent »

August 29, 2021


Michael, as you observe, commercial success (CS), as an indication of non-obviousness, is "notoriously difficult" to adjudicate. My suspicion is that judges and juries, out of their depth when it comes to assessing obviousness, are much more comfortable interrogating CS. This allows them to use CS as smoke and mirrors, to get to the obviousness result that accords with their gut feeling. I think it is a pity that the C of A passes the parcel back to the lower court with an instruction to spend yet more time interrogating the CS issue. As if the obviousness issue weren't difficult enough already to adjudicate.

Lord Mansfield, the father of commercial law in England, in 1769 had something intelligent to say, namely: in all mercantile transactions, the great object should be certainty and, therefore, it is of more consequencethat a rule should be certain than whether the rule is established one way or another.

The EPO and the courts in Europe, in addressing the obviousness issue, don't permit themselves to be swallowed up in endless debate about CS, how much, how relevant, how persuasive it is.

The view as to certainty (for commercial law) very much has its mirror in patent law - and that mirror has been shattered by our Supreme Court.

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