ARTICLE
29 April 2021

What's The Difference Between A Garden Hose And A Tractor?

JA
J A Kemp LLP

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J A Kemp is a leading firm of European Patent and Trade Mark Attorneys. We combine independent thinking with collective excellence in all that we do. The technical and legal knowledge that we apply to the protection of our clients’ patents is outstanding in its breadth and depth. With around 100 science and technology graduates in the firm, including 50 PhDs, no area of science or technology is outside our scope. Our Patent Attorneys have collective in-depth expertise in patent law and procedure in every country of the world. The team of professionals who advise our clients on trade mark and design matters have backgrounds in major international law firms and hold qualifications as Chartered UK Trade Mark Attorneys, Solicitors and European Trade Mark Professional Representatives. Dedicated to this specialist area of intellectual property protection, the team has the expertise and resources to protect trade marks and designs in any market worldwide.
This might sound like the start of a festive cracker joke, but is in fact the one of the main points of contention in the recent judgment, Claydon v Mzuri. The comparison was made in relation ...
United Kingdom Intellectual Property

This might sound like the start of a festive cracker joke, but is in fact the one of the main points of contention in the recent judgment, Claydon v Mzuri. The comparison was made in relation to an assessment of whether there had been a prior public disclosure during testing of a prototype agricultural seed drill. The prevailing case law, Mishan v Hozelock, relates to garden hoses.

For a patent to be valid, the claimed invention must be novel over the state of the art at the time of filing. The state of the art includes any public disclosure of the invention, whether written, oral, or based on a prior use. Further, it is not even necessary that a member of the public actually reads, hears or sees the disclosure.

No public disclosure was found to have taken place in Mishan v Hozelock because the inventor gave evidence to the effect that he would have hidden the prototype garden hose from anyone passing his garden while testing took place. However, although the inventor made similar comments in Claydon v Mzuri the judge in this latter case held that it was not possible effectively to hide a seed drill attached to a tractor from a hypothetical skilled-passer-by peering through a real hedge, at the edge of a real field.

This case is quite fact specific, but does demonstrate the limitations of a rebuttal based on Mishan v Hozelock to an alleged prior public disclosure.

If you intend to test a new invention somewhere public, you might wish seek advice from a patent attorney beforehand.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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