In E. Mishan & Sons Inc (t/a Emson) v Hozelock Ltd, the Patents Court has held two patents for an expandable garden hose invalid for obviousness over a US patent application for a self-elongating hose for providing oxygen to aviation crew. However, an alternative allegation that the patents were obvious for prior use, based on the work that the inventor had done in his garden on the prototypes, was rejected as Mr Justice Nugee found that it would require a notional skilled person standing on the public road in front of the inventor’s house to piece together information gleaned over the course of several days of spying on the inventor, which constituted impermissible mosaicking. Applying the Actavis questions, Nugee J found that the defendant’s expandable hose would have infringed if the patent claims had been valid.

 

Does this decision suggest that the test for public availability might depend on the subjective intent of the prior user, or a hypothetical example of what might have happened, in circumstances that did not actually happen (i.e. a person looking into the inventor’s garden)? Or is it simply an example of an inventor retaining control of the disclosure, so they could prevent it from reaching a member of the public?

 

Our article has been published in European Intellectual Property Review (EIPR) (2019) Vol. 41 Issue 9 pp. 588 - 592.