In the last few years, there has been a series of cases on infringement and validity of patents relating to garden hose pipes. The judgement in latest in the series - before the Court of Appeal - was published yesterday.
A full report will follow on the firm's website but here are a few preliminary comments.
First, the Court of Appeal completely avoids having to review the part of the High Court decision on disclosure by prior use. The inventor had tested the hose in his front garden before filing the patent application. Whether this was a public disclosure was considered at first instance. The Court of Appeal has neatly avoided the issue entirely.
Secondly, on the main issue of whether or not the patent would have been obvious over a document from a completely unrelated field (pipes for oxygen masks for airplane pilots), the two heavy-weight specialist patent Court of Appeal judges reach polar opposite conclusions.
Thirdly, due to the opposing views taken by the two patent specialists, the deciding vote goes to the third Court of Appeal judge, who is not a patent specialist.
The majority view is that the patent is invalid for being obvious over the oxygen mask supply pipe. Hence, no need for the Court of Appeal to consider whether it's also invalid from the disclosure by the inventor in his front garden.
I do wonder, given the opposing positions on obviousness taken by the patent specialists, if this will be one for the Supreme Court.
I am of course acutely conscious that the opposite conclusion has been reached by Floyd LJ, who (like Arnold LJ) is an acknowledged expert in the field of patent law. I have read Floyd LJ's judgment with the care and attention it deserves, and I have learnt much from it. In the end, however, I remain unconvinced that his reasoning provides a proper basis for overturning the judge's conclusions on the issue of obviousness. I would respectfully associate myself with the points in response made by Arnold LJ in his judgment at [71] to [75] above.
unknownx500
