Stating that even though the facts of the case were unusual, in
that the prior art which rendered the patent obvious contained an
obvious error, the judgment confirmed the finding at
In his judgment at the Court of Appeal, Sir Robyn Jacob held
that there was no "logical distinction between a case where it
obvious to look something up and one where it is obvious to ask and
clear that the answer would be given and would be clear. The
notional asking is exactly equivalent to the notional looking up.
In both cases the prior art spurs the action of finding out in a
Lord Justice Floyd agreed, holding that obviousness is
"concerned with what the skilled person would do in the light
of disclosure comprised in the state of the art".
"...where it is established that the skilled person would have
been prompted by the state of the art to ask for a specific piece
of information from a source which would be obvious, and that the
information requested would have been freely given, a finding of
lack of inventive step is, as it was here, properly open. The case
is no different from one where the skilled person would have to
perform routine tests with a drug in order to arrive at a claimed
pharmaceutical formulation or dosage range. There is no requirement
that the results of those tests should have been prior published,
far less that they be common general knowledge."
Although the point wasn't pursued in argument before them,
the Court of Appeal also noted that an oral description, " the
evidence of which is inherently potentially ephemeral" was
enough as a basis for an attack of lack of novelty or
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Trading under your name is an appealing idea, especially in the fashion world where designers frequently use their own names as brands (think Hugo Boss, Donatella Versace, and Tom Ford, to name but a few).
1.The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
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