Colombia: disposable underwear is not inventive

Last week, we read in the Colombian newspaper Portafolio that the Council of State (highest court of administrative litigation and the government’s advisory body) ended a dispute between an entrepreneur and the Superintendence of Industry and Commerce (SIC).

The State Council denied the request to grant a patent for disposable underwear. According to the lawsuit SIC had denied the patent because it lacked of inventiveness. The claimant on the other hand, claimed that SIC had failed to properly interpret the subject matter of the invention and its technical advantages. Also, it emphasised that this patent was already registered and accepted in other countries.

Is it obvious why super-heroes wear their underwear over their tights?

The key question confronted by the Council State was if the disposable underwear preventing leakage represented a qualitative change in the state of the art. The State Council agreed with SIC and denied the registration of the said product. It explained that the product did not fulfil one of the requirements (novelty, inventive step and industrial application) for granting a patent i.e. inventiveness. It went on to say that there was not inventiveness since the product represented a solution which was already found in other goods e.g. diapers. Finally it said that the inventive step is not tested by the fact that the product enjoyed patent protection in other countries.

The inventive step is tested towards what is obvious to someone with a good knowledge of the subject (an expert) and having regard to what forms part of the state of the art. There is the need to identify what differences exist between the matter cited as forming part of the ‘state of the art’ and the inventive concept of the claim. Obvious does NOT gain protection BUT only what is inventive.