Windsurfing International Inc. v. Tabur Marine Ltd.,  RPC 59; England and Wales Court of Appeals in Pozzoli Spa v. BDMO SA,  EWHC 1398 (Ch); F Hoffmann-La Roche Ltd. v. Cipla Ltd., 2016 (65) PTC 1 (DEL); Bristol-Myers Squibb Holdings Ireland Unlimited Company v. BDR Pharmaceuticals International Pvt. Ltd., (2020) SCC OnLine Del 1700; Actavis v. ICOS,  UKSC 15.
This Court in Agriboard International LLC v. Deputy Controller of Patents & Designs, 2022 SCC OnLine Del 940 held, while rejecting an application for lack of inventive step, discussion on prior art and manner in which subject invention would be obvious to a person skilled in the art would be mandatory.
The most relevant prior art document, which has been held against Avery Dennison Corporation, is D2. D2 was filed by Avery Dennison Corporation almost 18 years ago. If a long time has passed and a simple change resulted in unpredictable advantages which no one had thought of for a long time, Court would tilt in favour of holding, invention is not obvious. The fact it was not obvious is clear from lack of any other prior art document, addressing problems and suggesting solutions, despite gap of more than 18 years.
Controller’s finding, any person skilled in the art could make modifications in D2 to arrive at subject invention, is not tenable. The differences which Controller describes as ‘superficial’ may appear simple but clearly have an impact. Way back in 1890, House of Lords in Vickers v. Siddell, (1890) 7 R.P.C. 292 observed: “if the apparatus be valuable by reason of its simplicity, there is a danger of being misled by that very simplicity into the belief that no invention was needed to produce it.” A similar sentiment was echoed almost 100 years ago in Pope Appliance Corp. v. Spanish River Pulp & Paper Mills Ltd., (1929) 46 R.P.C. 23. It is clear, simplicity in invention should not deter Court.
The issue of evergreening does not arise. List before Patent Office for completion of requisite formalities.
– Hon’ble Justice Pratibha M. Singh of Hon’ble High Court of Delhi, Avery Dennison Corporation v. Controller of Patents and Designs, [CA(COMM.IPD-PAT) 29/2021] decided on 04.11.2022.