Are you 'a person skilled in the art'?

Author: David Rickard, Partner, Boult Wade Tennant.

The UK Patents Act 1977 provides that an invention shall be taken to involve an inventive step if it is not obvious to a person "skilled in the art" (Section 3). A similar requirement is common to most Patent Laws throughout the world.

The question who is "a person skilled in the art" came to be considered by the Court of Appeal (Stuart-Smith L J, Henry L J and Albous L J) in connection with a petition by Reckitt & Colman Products Limited for revocation of Richardson-Vicks, Inc's. European Patent (UK) No. 0180597 ("RVI's patent"). In order to assist in understanding the decision a synopsis of the factual background is set out below.

Background
The common cold and flu generally causes an ailing patient to suffer various symptoms, such as a runny nose, headache, congestion of nasal passages and sinus. A wide variety of medicaments for treating these symptoms have been available for many years including compositions containing a combination of different drugs aimed at the simultaneous treatment of several symptoms which have been sold over the counter ("OTC"). It has long been common for cold and flu medicaments to include an analgesic, the most commonly used being paracetamol and aspirin. These analgesics were and continue to be combined mixtures (liquid and tablets) with decongestants, antihistamines, cough suppressants and or expectorants. Some mixtures contain just two such ingredients, others more.

Aspirin forms part of a class of drugs known by the collective name "non-steroidal anti-inflammatory drugs" (NSAIDs). They not only help to reduce pain, but also help to treat fever and inflammation.

The 1960s and 1970s saw the advent of a number of new NSAIDs. The new NSAIDs were only available on prescription and many were patented. RVI's patent acknowledges eight such compounds, all of which were well-known by the priority date, April 1984. They included ibuprofen and naproxen amongst others. Ibuprofen was the most widely used of the new NSAIDs. It was well regarded. The advantages of ibuprofen over the old analgesics like aspirin and paracetamol were well established by the priority date and are significant. Ibuprofen has fewer side effects; for instance, it does not have the tendency to cause stomach bleeding, to the extent that aspirin does nor the tendency to cause liver damage as does paracetamol. It is also, in some respects, more effective at pain relief.

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