No separate law of collocation

United Kingdom

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 nick.beckett@cms-cmck.com or by on +44(0)20 7367 2490.