In its recent judgment of 2 October 2017 (Eli Lilly v. Laboratorios Cinfa et altri), the Spanish Supreme Court (Civil Chamber) has rejected this view. In particular, the Court has explicitly stated that the “problem & solution approach” is not legal doctrine and that, therefore, for the purpose of analysing inventive activity, Courts need not necessarily apply this method. The Court added that, in any event, the Court of Appeal of Navarre did apply this method in its judgment.
The judgment contains other interesting aspects, such as confirmation that the answer to the third question (Obvious to a person of ordinary skill?) of the method requires a legal assessment rather than an assessment of fact. Also, the judgment appears to accept that an expert with experience in the technical field of the invention is better placed to illustrate whether or not the invention would have been obvious to the hypothetical person skilled in the art, than other experts with no experience. This line of reasoning, if followed in future cases, will align the case law of the Spanish Supreme Court with the case law of other European jurisdictions, such as the UK.
All in all, the main teaching of this judgment is that although the “problem & solution approach” is a very valuable method, other methodologies may be used.