According to the current ruling of the Federal Court of Justice (BGH) of March 27, 2018, “Kinderbett”, the general knowledge of the person skilled in the art can only be used as an incentive, if it is readily apparent to the person skilled in the art that a technical starting point exists in which the use of the solvent in question is purposively (see BGH, judgment of 27/03/2018 – X ZR 59/16).
In the decision, the Federal Court of Justice (BGH) states that for an obviousness of the invention it is not enough that the person skilled in the art, by his training, his professional experience and his knowledge and abilities, is able to reconstruct the solvent – used by the invention – in order to solve the technical problem. In addition, for an “obviousness” it is also required that the person skilled in the art had a reason to pursue the path of the invention. For this motivation, appropriate references, suggestions or reasons are normally required, which go beyond the mere recognition of the technical problem.
In this new decision, the BGH has therefore confirmed its previous case-law and once again made clear that it is necessary for a person skilled in the art to receive hints or suggestions in order to use his common general knowledge for the solution of a technical problem. The mere possibility for the person skilled in the art to solve the problem by using his common general knowledge is generally not sufficient for an “obviousness” of the invention.
On the basis of this, the BGH decided that the patent in question – concerning a cot – had the required novelty and, moreover, is also based on an inventive step.