What is the State of the Art for the Purpose of an Obviousness Attack?

Abstract

Under the “old” Canadian Patent Act the body of prior art that may be set up against the patent in an obviousness attack did not include all publicly available information that may be set up in a novelty attack, but only that which is generally known to a person skilled in the art or which would be discovered by a skilled person in a reasonably diligent search prior to addressing the problem at hand. There is an open question as whether the new Act has changed the law in this respect, so that all publicly available prior art may be used in an obviousness attack, regardless of whether it would have been discovered by a reasonably diligent search. This article reviews the debate and concludes that the better view is that the codification has not changed the law.