Obviousness: Are We Moving Toward the Eye of the Beholder?

Abstract:

This paper examines the changes to the test for obviousness in recent times, especially in the light of the Supreme Court of Canada’s decision in Sanofi. A determination of obviousness, although stated to be an objective test conducted through the lens of the person of ordinary skill, is subjectively applied. Regardless of the framework used and no matter the semantics of the test employed, a fundamental question remains: when is an invention obvious? How does one determine where the shadows of obviousness end and the brilliance of invention begins? The tests for obviousness are easy to articulate, but they can be difficult to apply. By considering some recent applications of the test, this paper aims to shed some light on how obviousness is currently adjudged in Canada and whether we have moved closer to an “eye of the beholder” test.