The Australian courts and the Australian Patent Office continue to have divergent views on the level of obviousness required to invalidate a patent. Whilst the Patent Office has attempted to move Australia towards the European so-called "problem and solution" approach, the courts highlight deficiencies in it and refuse to adopt the Office's preferred view.
In Sigma Pharmaceuticals v Wyeth, [2010] FCA 1211, Justice Jagot posed a series of difficult hurdles to any infringer wishing to revoke a patent for obviousness. Firstly, she discounted the evidence of experts in the area, on the basis that even the fact that there was litigation was likely to give the expert the benefit of hindsight that a solution to the problem they were being asked to consider must exist.
Further, Justice Jagot rejected the use of a problem and solution approach in this and many other cases, noting that identification of the problem itself can often form part of the invention. Citing earlier authorities she noted that: "The 'problem and solution' approach may be particularly unfair to an inventor of a combination, or to an inventor of a simple solution, especially as a small amount of ingenuity can sustain a patent in Australia."
This strong divergence between the Australian Courts and the Office will continue until a patent applicant is forced to appeal a Patent Office decision to adopt a problem and solution approach in rejecting a patent application.
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