Canadian patent examiners will now be assessing patent applications under a new guideline which applies a four-part test on obviousness.  This flows from the 2008 Supreme Court of Canada decision in Apotex Inc. v. Sanofi-Synthelabo Canada Inc., 2008 SCC 61. The following test is being applied pursuant to CIPO’s new Practice Notice on Obviousness – November 2, 2009:

1. Who is the “person skilled in the art” and what is the relevant common general knowledge of that person?
2. What is the inventive concept of the claim contained in the application?
3. What difference, if any, exists between the prior art and the inventive concept contained in the application?
4. Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?

Related reading: SCC Decision on Selection Patents

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