A patent application, when examined, may be found to lack an inventive step in light of the “common general knowledge” (“CGK”).
The CGK is a little bit of legal jargon that seems like it should refer to ‘the stuff everyone just basically knows’, but actually has a very specific legal meaning in this context.
For an invention to be patentable, it must satisfy certain criteria. There are a few of these but the most relevant in this discussion is that a patentable invention must involve an inventive step (i.e., be non-obvious). Inventiveness is generally reckoned by comparing your application to other patent specifications, but it may also be through comparison with scientific papers, websites, products, etc. Your application can also be compared to the CGK, most often in combination with one or more other documents, but sometimes the CGK alone will be cited by an Examiner.
To understand the CGK, we should look at legislation and case law.
Legislation and the Common General Knowledge
Under s7(2) of the Australian Patents Act 1990, ‘an invention is to be taken as involving an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art (PSA) in light of the common general knowledge’.
This tells us something about both inventiveness and the CGK. Firstly, the CGK is built into the legal concept of inventiveness. Secondly, the CGK is inextricably linked to the person having ordinary skill in the art (also referred to by other terms in different places, but commonly abbreviated as a person skilled in the art or PSA). The identity of the PSA is a topic worthy of its own discussion, but to put it briefly, they are a theoretical person whose point of view is used to judge the novelty and inventiveness of a patent application.
Case Law and the Common General Knowledge
What else this might mean has been expanded upon in case law. One of the fundamental definitions used in Australia describes the CGK as ‘that which is known or used by those in the relevant trade. It forms the background knowledge and experience which is available to all in the trade… it must be treated as being used by an individual as a general body of knowledge.’ (Minnesota Mining &Manufacturing Co v Beiersdorf (Australia) Ltd [1980] HCA 9; 144 CLR 253 at 292).
This has been expanded upon in later decisions, being described as the ‘technical background to the hypothetical skilled worker’ (ICI Chemicals & Polymers Ltd v Lubrizol Corp 45 IPR 577). This differentiates the CGK from what might be called ‘common knowledge’ in our everyday speech – ‘the stuff everyone just basically knows’. This same case went on to give examples of what might constitute the CGK: standard textbooks, standard English dictionaries and/or technical dictionaries, magazines, etc., specific to the technical field.
What Does This Mean for Your Patent?
So: if your patent application receives citations based on the CGK, there are questions that need to be asked by your patent attorney. It is not enough for the Examiner to simply say that the CGK renders the invention obvious. The CGK needs to be put into a context that includes the nature of the invention and the identity of the PSA. Only then can the scope of the CGK be determined. After that, the Examiner needs to demonstrate the steps that the PSA would take that lead inevitably from the CGK to your invention.
Compared to a citation based on a specific document, an objection based in the CGK can feel nebulous and hard to disagree with. However, as we have seen, the CGK is legally very well defined. A patent attorney such as those at Michael Buck IP will be able to evaluate the extent of the objection, cut through the jargon, and work with your application to achieve the best possible outcome for your invention. If you require assistance with such an objection, contact our patents team today via our book a meeting form or by calling 07 3369 2226.
