The Court of Appeal has held that the skilled person (which can be a team of individuals) may vary depending on the question in issue (e.g. obviousness, novelty, sufficiency or construction). The patents in suit taught the use of marine Controlled Source Electromagnetic (“CSEM”) surveying to locate oil or gas. For the purposes of sufficiency (a post-patent issue), an exploration geophysicist and a CSEM expert would form the skilled team implementing the invention. In contrast, for the purposes of obviousness (a pre-patent issue), the skilled team would not comprise both types of expert, since the geophysicist would have had no apparent use for CSEM technology. In holding the two patents in issue to be valid, the Court of Appeal overturned the High Court’s first instance finding that the skilled team is always the same as well as its subsequent decision that the two patents in issue were obvious.

A full summary of this case has been published on Kluwer IP Law.

See also http://www.bailii.org/ew/cases/EWCA/Civ/2010/8…


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