PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.
A patent can only be granted when there is novelty in the thing for which the patent is sought. This is why it is critical that one’s novel designs do not become public knowledge: once they do, a patent application can be defeated on the ground of ‘common general knowledge’. Similarly, if a patent is sought in respect of something which is obvious from knowledge of the area, it should not be granted.
In a recent case, Motorola sought to claim against Microsoft for breach of patents relating to its messaging technology, which allows messages to be synchronised across multiple transceivers. The allegation was made in respect of technology used by Microsoft in its Live Messenger and Exchange Active products.
The court agreed that had Motorola’s patent been valid, it would have been infringed by Microsoft. However, a combination of prior common general knowledge, lack of novelty and the obviousness of the application served to defeat the claim by invalidating the existing patents.
Says Clare Towers, “Before attempting to register a patent, it is important to make sure that even if the patent is granted, it cannot subsequently prove valueless on the basis that one of the basic prerequisites for the granting of a valid patent has not been met.”