Facts
X. AG is the holder of a Swiss patent for a disposable diaper, which was granted to it on March 31, 1988, claiming priority from a Swedish application dated October 25, 1982. On June 13, 1989, the companies Y. and Z. filed a claim with the Commercial Court of the Canton of Bern, requesting the nullity of X. AG's patent. In partial acknowledgment of the claim, X. AG restricted its patent. The Commercial Court ruled in its judgment of December 1, 1992 that the defendant's patent was null and void even in its restricted form, as it lacked an inventive step.
The defendant has appealed the judgment of the Commercial Court, which was dismissed by the Federal Supreme Court.
Considerations
The Federal Supreme Court stated that the realm of inventiveness only begins beyond the zone that lies between the prior art and what the averagely well-trained specialist in the relevant field can further develop and find. The decisive factor is whether such a specialist can already arrive at the solution of the disputed patent with little mental effort or whether it requires additional creative effort.
The averagely well-trained specialist does not have to overview the entire prior art, but must have sound knowledge and skills, a good education, and sufficient experience. When determining the required qualifications, the peculiarities of the technical field must be taken into account. In this sense, the commercial objective and the usual way of employing specialists in a particular field must be taken into account. This can lead to the knowledge and skills of an entire research team or an average specialist supported by a staff of scientifically trained and…