Is the invention obvious?

“So obvious”

4.72 The Court of Appeal in First Currency Choice Pte Ltd v Main-Line Corporate Holdings Ltd and Another Appeal [2007] SGCA 50 discussed the use of the Windsurfing test, noting that critics considered the Courts merely pay lip service to the first three. They went on to say that:

“Be that as it may, simplicity is certainly to be appreciated, and, in assessing the obviousness of an alleged invention, it may sometimes suffice in straightforward cases to refer to the test formulated by Lord Herschell in Vickers, Sons And Co, Limited v Siddell, (1890) 7 RPC 292, where he stated (at 304) that an invention lacked an inventive step if what was claimed was ‘so obvious that it would at once occur to anyone acquainted with the subject, and desirous of accomplishing the end’. Quite often, it is difficult, in practice, to break down the Windsurfing test ([41] above) into its component parts. Thus, while the Windsurfing test remains a useful guide, it is no more than that.”

4.73 Thus, in some cases it may be appropriate to depart from a strict application of the Windsurfing test. This is most likely to be where obviousness is so self evident that there is little benefit in following the structured approach required by Windsurfing. However, if such an approach is taken care must be taken to avoid hindsight.