Patent Appeal decision, obviousness and commercial success.

Aerotel v Wavecrest

This was an appeal from a decision of JJH Fysh QC, sitting as a Deputy High Court Judge, holding Aerotel’s patent invalid on the ground of obviousness. The patent related to a method of making phone calls and a telephone system.

On appeal, Aerotel sought to show that JJH Fysh QC had erred in principle being that the invention had been a very considerable commercial success.

Unfortunately for Aerotel the appeal was dismissed, the invention was obvious and the Deputy Judge had not erred in principle.

While the commercial success of an invention can be a powerful indication of non-obviousness if it is shown that the alleged invention has led to commercial success.

It seems in this case however Aerotel had not shown that it’s commercial success was due to the invention but rather, it had made money from the patent by litigation and the threat of litigation, mainly in the US.

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