Critère de brevetabilité: non-évidence (inventivité)

Rappelons que pour qu’une invention soit brevetable, celle-ci doit répondre à 4 principaux critères: nouveauté, utilité, inventivité et elle doit évidemment ne pas faire l’objet d’un empêchement de breveter statutaire dans la juridiction qui nous intéresse.

Nous profitons ici de la décision Pfizer Canada Inc. v. Canada (Minister of Health) (2005 FC 1205 T-1633-03 2005-09-28) rendue par la Cour fédéral du Canada pour voir ce qu’on entend par “évidence” présentement au Canada (en anglais).

“The test for obviousness is not to ask what competent inventors did or would have done to solve the problem. Inventors are by definition inventive. The classical touchstone for obviousness is the technician skilled in the art but having no scintilla of inventiveness or imagination; a paragon of deduction and dexterity, wholly devoid of intuition; a triumph of the left hemisphere over the right. The question to be asked is whether this mythical create (the man in the Clapham omnibus of patent law) would, in the light of the state of the art and of common general knowledge as at the claimed date of invention, have come directly and without difficulty to the solution taught by the patent. It is a very difficult test to satisfy.

[92] Hindsight must not be used in assessing whether a patent is obvious. The question is whether the solution taught by the patent would be “plain as day” to the skilled technician who is seeking something new, without the necessity of conducting experiments or research. Justice Hugessen, writing for the Court in Beloit, supra, sounded a cautionary note in this regard at page 295, where he said the following:

Every invention is obvious after it has been made, and to no one more so than an expert in the field. Where the expert has been hired for the purpose of testifying, his infallible hindsight is even more suspect. It is so easy, once the teaching of a patent is known, to say, “I could have done that”; before the assertion can be given any weight, one must have a satisfactory answer to the question, “Why didn’t you?”

[93] A patent is obvious only if the solution to the problem is clearly apparent. Suggestions in the prior art are not enough to render a patent invalid on the basis of obviousness; see Apotex v. Wellcome, supra; Bayer Aktiengesellschaft v. Apotex Inc. (1995), 60 C.P.R. (3d) 58 (Ont. Gen. Div.); and Hoechst v. Halocarbon (Ontario) Ltd., [1979] 2 S.C.R. 929. The person skilled in the art must be able to say that he or she would know that the invention would work and would have the benefits associated with the invention in light of publicly available information. The person skilled in the art must know that the solution or benefits would exist without testing, excluding verification of established information.

[94] In the case of obviousness, the invention need not be disclosed in one single patent or piece of prior art, as is the case for anticipation. The Court is entitled to look at all the patents and other publications that a skilled technician would discover in a “reasonable and diligent search”, to determine whether the resulting “mosaic” leads directly to the invention; see Illinois Tool Works Inc. et al. v. Cobra Anchors Co. (2002), 221 F.T.R. 161, aff’d. (2003), 312 N.R. 184 (F.C.A.).”

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