For Indian patent applicants, the phrase “Common General Knowledge” (CGK) often becomes a stumbling block during the prosecution stage. Frequently cited in inventive step claim rejections, it implies that an invention’s technical contribution is obvious to those skilled in the art. But what happens when this knowledge is assumed rather than evidenced?
The Indian courts have provided increasing clarity on this issue. Let’s explore what these cases mean for patent applicants.
First, What Is “Common General Knowledge”?
CGK refers to foundational knowledge widely known and accepted by skilled professionals in a specific technical field. It includes information that practitioners readily refer to as a reliable basis for further work, even if not memorized. CGK does not encompass specialized or niche knowledge known only to a few experts but represents the shared understanding considered trustworthy and actionable by the broader community in the field.
Under Section 2(1)(ja) of the Indian Patents Act, CGK is often invoked by the controllers to argue that an invention lacks an inventive step. However, controllers must substantiate CGK claims with concrete sources, such as textbooks, technical articles, or widely recognized industry practices known before the patent’s priority date. Without such evidence, CGK-based rejections can feel unjust, leaving patent applicants to contend with objections lacking a clear factual basis.
Case 1: Agfa NV & Anr. v. The Assistant Controller of Patents and Designs (Delhi High Court)
In this case, the appellants sought patent protection for their method of manufacturing decorative laminates. The Controller rejected the application, citing prior art (D5) and CGK. The Controller asserted that modifying the dry weight of colour pigments was obvious based on CGK but failed to provide supporting evidence.
Key Observations:
1. Substantiation of CGK is Mandatory: The court emphasized that CGK must be backed by credible sources, ideally from qualified experts referencing standard technical publications from the relevant time.
2. Vague Generalizations Are Insufficient: The court was critical to Controller’s failure to specify sources or explain the CGK claims, noting that rejections must clearly identify the CGK relied upon and how it combines with prior art to support an obviousness finding.
This lack of specificity rendered the rejection unsound, as the Controller’s reliance on CGK was deemed arbitrary and unsubstantiated.
Case 2: Microsoft Technology Licensing v. The Assistant Controller of Patents and Designs (Madras High Court)
This case involved a rejection based on prior art combined with CGK. The Controller claimed that a person skilled in the art would naturally combine prior arts (D2, D3) with CGK to achieve the claimed invention but failed to provide reasons for this conclusion.
Key Observations:
1. Sources Must Be Identified: The court noted that while the Controller cited D2, D3, and CGK, there was no explanation of how these elements combined to render the invention obvious. Without clear reasoning, the rejection could not stand.
Without proper reasoning or evidence, the CGK-based rejection was set aside. This case built upon Agfa, reinforcing that CGK cannot be a placeholder for missing evidence.
Case 3: Dhama Innovations Pvt. Ltd. v. The Assistant Controller of Patents and Designs (Madras High Court)
This case involved an invention for efficient heat dissipation. The Controller rejected the application, citing prior arts (D1-D3) and CGK. The Controller argued that each element of the invention was known or obvious based on CGK but did not substantiate these claims.
Key Observations:
1. CGK Must Be Discussed, Not Assumed: The court emphasized that Controllers must do more than mention CGK; they must identify the source of such knowledge and explain its relevance.
2. CGK Must Be Supported: Without supporting documentation, CGK-based rejections lack validity.
The Madras High Court’s approach again echoed the earlier decisions and the need for substantiated CGK claims
Case 4: Mahesh Gupta v. Assistant Controller of Patents and Designs (Delhi High Court)
This case contrasts with the previous ones, demonstrating when CGK becomes a strong basis for rejection. Unlike earlier cases, the Controller in this matter provided concrete evidence supporting CGK assertions, including existing market products and well-documented prior art reflecting the state of the field.
Key Observations:
1. The court endorsed the Controller’s approach, noting that specific examples and detailed analysis effectively demonstrated the CGK.
2. The court concluded that CGK, when supported by factual data and thorough reasoning, can form a valid basis for rejection.
When Does “Common General Knowledge” Become a Strong Basis for Rejection?
While earlier cases highlight the risks of unsupported CGK claims, the Mahesh Gupta case demonstrates that CGK can become a strong basis for rejection when supported by factual evidence. CGK becomes a strong rejection when:
1. It is backed by real-world examples, such as commercially available products or widely adopted industry standards.
2. The combination of prior arts leads to the claimed invention without requiring inventive ingenuity.
3. The examiner demonstrates why a skilled person would combine prior art with CGK to arrive at the invention naturally.
How to Handle CGK Objections in India
When preparing a response to CGK objections in India, consider these approaches:
1. Demand Specificity: Request concrete references for any CGK-based assertions.
2. Challenge Vagueness: Highlight the absence of substantiation if CGK is cited without clear evidence.
3. Provide Counter-Evidence: Submit technical literature, expert affidavits, or real-world examples to counter the CGK claim.
4. Distinguish with Technical Depth: Emphasize the unique technical contribution of your invention that CGK or prior art does not address.
Summing Up:
The jurisprudence around CGK in India highlights that CGK cannot be treated as a catch-all justification for rejecting patent applications. Courts demand substantiation through credible sources and logical reasoning. However, as the Mahesh Gupta case shows, CGK can indeed form a valid basis for rejection when grounded in factual evidence and robust analysis.
For patent applicants in India, the message is clear. Challenge unsupported CGK claims vigorously but be prepared to address well-substantiated ones with equal rigor.
Disclaimer:
This article is intended for informational purposes only and does not constitute legal advice. The views expressed are based on the interpretation of recent court decisions and are not a substitute for professional legal consultation. If you would like advice tailored to your specific patent matters, feel free to reach out at mail@radeyip.com
Sources:
1) https://indiankanoon.org/doc/108749286/
2) https://indiankanoon.org/doc/121549025/
