IP-2024-000061 - [2025] EWHC 1936 (IPEC)

‘[72] It was common ground in this case that in a prior user case in which it is said that the invention was made available to the public, even though nobody in fact took advantage of that availability, the information made available is that which would have been either noticed or inferred by a person skilled in the art who, hypothetically, had taken advantage of the access to the invention established on the evidence. I agree. In effect, the hypothesis concerns a skilled person as observer.

[73] Mr Nicholson made the further point that for the invention to be enabled, the skilled person need only have been able to discern details of the invention at the level of generality at which they appear in the claim. I agree.

[74] As appears from Folding Attic Stairs [Folding Attic Stairs Ltd v Loft Stairs Co Ltd [2009] EWHC 1221 (Pat)] it must be assumed that the skilled person’s access was limited to that permitted in law; access by trespassing, for instance, is excluded from the hypothesis.’