In the recent case of SABAF SpA v MFI
Furniture Centres & Anr, the Court of Appeal overruled the
decision of Laddie J in finding that there is no separate law of
collocation, and that a “mere collocation is no more than a
species of obviousness judged by the statutory tests.
The Court of Appeal considered that Laddie J,
in revoking the patent in suit at first instance, had focused too
much on the two elements he claimed were a “mere collocation
rather than the statutory question “is the invention
obvious? Laddie J had not applied the
well-established Windsurfing test, but had employed what
the respondent considered to be “a legitimate short cut to a
finding of obviousness. Although the
Windsurfing approach is not a requirement, the Court of
Appeal stated that there are “dangers in cutting the corner
and it saw no reason to treat the case, albeit regarding a
collocation, as requiring a modification of the
Windsurfing test. Applying this test it
found the patent valid.
Importantly, the Court of Appeal has
clarified the position on collocation. Counsel
for the Respondent had argued that the pre-1977 law was still
valid, namely that the collocation of two integers, both of which
were obvious when considered individually, and which did not
interact, would be presumed obvious. The
position is now clear that there is no such
presumption. The Court must consider, on the
facts, whether the act of placing two particular elements together
would involve an inventive step, whether or not the elements
themselves are obvious individually.
For further information on this case please contact Nick
Beckett at firstname.lastname@example.org or
by on +44(0)20 7367 2490.