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Windsurfing International v.

Tabur Marine, (1985) RPC 59


PETITIONER DEFENDANT: Windsurfing International Tabur Marine

JURISDICTION : IN THE COURT OF APPEAL

Facts
The patent (Schweitzer Patent) in suit is a wind propelled vehicle having an unstayed spar connected through a universal joint and a sail attached along one edge to the spar and held taut between a pair of arcuate booms mounted on the spar at one end and joined together at the other which is called Bermuda rig with a wish bone spar. The unstayed sail was used to steer the vehicle and could be jettisoned in case of trouble. The Tabur Marine , the defendant was producing windsurfs similar to that of the patended product of the plaintiff for which an infringement suit was filed. The defendant counter-claimed for its revocation challenging the validity of the patent on the ground that it lacked novelty over a prior user and was obvious in view either of the prior user or of a printed publication. The printed publication was an article entitled Sail Boarding-Exciting New Water Sport published in Popular Science Monthly which described the same basic concept as that of the patent but the sail board has been fitted with a square-rigged sail. The cited prior user had taken place some 10 yrs before the date of the patent when Peter Chilvers ( the a 12yr boy) had built a sailboard and used it on an inlet near an island on summer weekends during 2 consecutive seasons. Chilvers sailboard differed from what was claimed only in that the sail was held between a pair of booms which were straight when the vehicle was at rest. However the evidence was that the booms were sufficiently flexible. The patent officer held that the claims of the plaintiff invalid as anticipated by the prior user and obvious in view of the published article. The plaintiff appealed to the court of appeal on the findings of anticipation and obviousness. There the defendants lodged respondents notice on the question of obviousness over the prior user.

CONTENTIONS

A person interested in the field of invention would have been likely to have come upon what was known and to have appreciated its significance and utility.

The philosophy behind obviousness must take into account the same concept as anticipation , namely that it would be wrong to prevent a man from doing something which was merely a an obvious extension of what has been doing or what was known in the art before priority date. The question of obviousness was not to be answered by looking with the benefit of hindsight at what was known and what had been known at the priority date and asking whether the former flowed naturally and obviously from the latter , but by hypothesizing what would have been obvious at the priority date to a person skilled in the art who had access to what was known in the art at that date. It must be assumed from the mere fact of publication that a skilled man would have been familiar with and interested in what was known.

Case Analysis
The court observed that the article was clearly evident to the field to which the claims of the patent related. It disclosed the same inventive concept and the only difference of substance was the use of a square rig held by a crossed spar and boom instead of a Bermuda rig held by a wishbone boom. The court laid down 4 steps to determine obviousness Identifying the inventive concept Imputing to a normally skilled but imaginative addressee what was common general knowledge in the art at the priority date Identifying the differences if any between the matter cited and the alleged invention and Deciding whether those differences viewed without any knowledge of the alleged invention , constituted steps which would have been obvious to the skilled man or whether they required any degree of invention.

Decision
The court held that the anticipation by the prior user was established. The court invalidated the Schweitzer Patent on ground of anticipation by prior user.