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UK Carbon Border Adjustment Mechanism: how will it work?
In February, we reported on the Department of Energy Security and Net Zero’s confirmation that a UK Carbon Border Adjustment Mechanism (CBAM) would be bought into force by 2027
Canada | Publication | August 2019
A case about inventions for railroads contains a powerful reminder: a patent is always directed to a defined audience, and the characteristics of that audience can dictate whether or not the patent is valid.
Patents are drafted to be read by a “skilled worker” who would want to put the invention into use — not to the general public. The skilled worker is deemed to be uninventive, but possesses qualifications and characteristics that should — together with the specification of the patent — make it possible to put the invention into practice. Among those characteristics, the skilled worker is deemed to possess the common general knowledge in the relevant art. This knowledge and perspective is also brought to bear when interpreting the patent and considering the inventiveness of the claimed subject matter.
Thus, the qualifications, characteristics, and common general knowledge of the skilled worker can be central to the outcome of a patent dispute. It can mean the difference between whether or not the subject matter of the claims was obvious.
As the case of Tetra Tech EBA Inc. v Georgetown Rail Equipment Company illustrates, an obviousness analysis can quickly go off the rails if a court fails to tie its analysis back to the knowledge and perspective of the skilled worker or strays too far from the language of the claims when interpreting them.
In Tetra Tech, two patents-in-suit pertained to systems and methods using machine (as opposed to human) vision for: 1) inspecting railroad tracks; and 2) determining rail seat abrasions of a railroad track.
In the Federal Court, the trial judge accepted that the common general knowledge of the skilled worker to whom the patents-in-suit were directed would have included the application of machine vision techniques and an ancillary knowledge of railways.
The defendant, Tetra Tech EBA Inc., argued the patents were invalid because the subject matter would have been obvious to the skilled worker. The trial judge rejected this argument, focussing on specific publications that Tetra had cited.
In the result, both patents were declared at trial to be valid and infringed by Tetra.
The Federal Court of Appeal reversed the trial judge, finding the relevant claims of both patents to be invalid for obviousness.
There are a few points of note from the Court of Appeal’s reasoning:
As this judgment demonstrates, the Court of Appeal has recently shown itself willing to review and modify the analysis of the trial judge on a range of substantive issues concerning patent interpretation and make highly factual findings concerning the validity analysis.
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In February, we reported on the Department of Energy Security and Net Zero’s confirmation that a UK Carbon Border Adjustment Mechanism (CBAM) would be bought into force by 2027
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