the patent will be considered obvious and invalid. The court makes clear that where the required experimentation to take the leap is extensive, a patent can be granted for the further step taken. The American Approach to Obvious-to-Try: KSR International Co. v. Teleflex Inc. The Supreme Court of the United States was confronted with the obvious to try issue in KSR International Co. v. Teleflex Inc., where the subject-matter of a patent was a combination of known components. They held that “when there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that the result is not innovative enough to be patentable.” This is similar to Canada in that an invention can still be deemed to be obvious, despite going a step beyond the prior art. Commercial success A patented item that is an instant hit on the market is less likely to be found obvious than a patent for a product that was poorly received. In Diversified Products Corp. v. Tye-Sil Corp. the Federal Court of Appeal stated that: [w]hile the factor of commercial success, taken alone, is not conclusive evidence of inventiveness, where as here, it is but one of many factors, it cannot be disregarded. The court listed other factors that may support a finding of non-obviousness: Looking at these various factors -- the device is novel and superior to what was available until then; it was since used widely and in preference to alternative devices; competitors as well as experts in the field had never thought of the combination; amazement accompanied its first publication; commercial success -- it is, using the words of Tomlin J., in De Frees , supra, ‘practically impossible to say that there is not present that scintilla of invention necessary to support the patent’. References Canadian patent law Canadian intellectual property law