Author: Peter Caporn
Prior public display and offer for sale not sufficient to destroy novelty
A recent appeal decision from the full Federal Court has found that providing a product for sale in Australia that embodied an invention did not make that invention publicly available in Australia in the absence of evidence that anyone wanted to examine the product to see how it worked, or had actually done so. Whilst the product in question was a spring assisted roller blind ‘control mechanism’, the workings of which were internal to the blind, the ramifications of this decision are far greater and extend across all technology areas.
Historically, the generally accepted view has been that the placing of an item on sale, without fetter, was sufficient to destroy novelty, even in the absence of evidence that someone either bought one or that someone inspected it closely to consider how it worked. Also, it hasn’t traditionally mattered whether the clever part of the product was hidden or not. This decision appears to move the goal posts, making it harder to invalidate a patent for prior use. However, it is now arguably easier for a patentee to overcome instances of relatively minimal prior use, whether it is their own or those of another party. The full decision can be read here.