tag:blogger.com,1999:blog-2352189175211648260.post693651615877316637..comments2023-10-24T14:45:41.342+02:00Comments on K’s Law: T 12/07 – Where Could/Would Endsorhttp://www.blogger.com/profile/07992102028406713066noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-2352189175211648260.post-85451440393976229522010-11-27T23:17:44.143+01:002010-11-27T23:17:44.143+01:00Well, PSA *is* the method that the Boards and firs...Well, PSA *is* the method that the Boards and first instances apply, so it is certainly worthwhile to discuss the "technicalities" of this approach. One such "technicality" is how to deal with a distinguishing feature not achieving a technical effect. Is it enough that the skilled person "could" adapt the closest prior art to exhibit the feature, or is something more necessary (e.g. some kind of hint in the prior art) to show that the skilled person "would"?<br /><br />I believe this is not simply a question that has different answers depending on the facts of the case, but truly a legal question.<br /><br />I also believe that the answer can be found by applying common sense. Using the posterior of a child as a paint tool is not inventive but only silly (common sense). This is independent of whether any hint can be found in the prior art for this use of a child's posterior (common sense). Therefore the existence of such a hint should not be a requirement for finding a lack of inventive step (logical deduction). Therefore the fact that a child's posterior used as a paint tool does not provide any technical effect over the use of known paint tools should be sufficient for finding a lack of inventive step, i.e. in the absence of a technical effect it is sufficient that the skilled person "could".<br /><br />(Note that I'm not saying that the silliness factor takes away inventive step. It's the lack of a technical effect that does that. The silliness only makes visible, from a common sense point of view, that a hint in the prior art cannot be a requirement. Indeed, the more silly, the less likely that there is relevant prior art.)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-2621179161379893452010-11-24T09:14:07.444+01:002010-11-24T09:14:07.444+01:00I just browsed through the comments mentione above...I just browsed through the comments mentione above. They are interesting and amusing at the same time. I believe that an underlying assumption in the debate is that there must be a method for judging inventiveness that always leads us to the right answer. Although it is very desirable that a judgement be previsible, judging matters of degree is not natural science. The result quite often depends on the approach taken and often also on non-spoken implicit assumptions.<br />The problem-solution approach tries to reduce the gap in the question "would the skilled person have done this?", but it is not a mathematical tool that gives a single answer for every possible situation.<br /><br />So what is left is to apply common sense, but alas this is not the same thing for everybody.pat-agoni-ahttps://www.blogger.com/profile/14383461539323071512noreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-19670845539338088622010-11-24T02:54:46.513+01:002010-11-24T02:54:46.513+01:00This decision reminds me of the discussion in the ...This decision reminds me of the discussion in the comments <a href="http://k-slaw.blogspot.com/2010/03/t-133307-credible-cause.html" rel="nofollow">here</a>.Anonymousnoreply@blogger.com