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Inventive step at the EPO 80s style


18th Nov 2013

MacGyver was the central character of the hit ’80s TV show of the same name (a show that boasts one of the best theme tunes of all time – click here to view); he was a spy/secret agent/veteran/bomb disposal expert and all round good egg. The salient point to know about MacGyver is that he often faced tough problems, and he solved these problems using everyday objects that happened to be lying around, coupled with an encyclopaedic knowledge of the physical sciences, a Swiss Army knife, and a sprinkling of a property that some might call “awesome”.

MacGyver, you see, was a genius. A man that could disarm a missile with a paper clip, turn a flare-launcher into a rocket thruster, use a cigarette and pair of binoculars to disarm a deadly laser, use chocolate bars to stop a sulphuric acid leak, and make an explosive from some handily discarded sodium metal and a cold capsule. And that was all in one 45 minute episode.

So here we have someone that solves particular problems using combinations of everyday objects. It impresses his friends and confounds his enemies, but would it impress the European Patent Office (EPO) sufficiently to award MacGyver a patent or two?

In order to award a patent, the EPO must agree that the claimed solution to a technical problem is inventive. To answer this question the EPO has developed the “problem and solution” approach which is detailed here.

In one particular episode, in order to open a locked security van, MacGyver creates a thermite torch using magnesium from a handily present racing bike and some iron rust, which he inserts into a metal tube and ignites with a flare. Science! Certainly. But is it inventive?

Sadly for MacGyver, probably not. The EPO specifically mention in their guidelines (see here) that it is not inventive to use well-known materials by employing the known properties of those materials. Since the thermite reaction is well known, we are really only left with the choice for the source of magnesium, which is unlikely to raise any eyebrows at the EPO for the consideration of inventive step.

This is a recurring theme throughout the seven glorious seasons of MacGyver. Everyday known objects are scavenged for their known properties and combined to produce a useful result. Unfortunately, the EPO only awards patents for such combinations where the result is surprisingly greater than the sum of its parts. If the result is exactly what you would expect from the combination then you will not be granted a patent, even if you have a mullet.

MacGyver, it turns out, is closer to the EPO’s “skilled person”, a fictional construct imbued with the common general knowledge of the scientific field within which the invention in question falls. It is through the skilled person’s eyes that the EPO looks to determine whether an invention is inventive enough to deserve a patent.

MacGyver belongs at the European Patent Office examining patents. This would, of course, not make for particularly interesting television.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.

Author
Pete Sadler
Partner
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Would you like to know more? You can talk to Pete Sadler who will be able to help. Call +44 (0)20 7539 4454

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