Research Councils UK (RCUK), the partnership of organisations that collectively fund £3 billion of research expenditure per year in the UK, have recently revised their policy towards academic publishing and now require all new research publications to be ‘open access’. In some fields this has signalled a radical move away from the traditional model of publishing papers in paid-for subscription journals. The motivation behind this is that publicly-funded research should be made freely available, “not just to other researchers, but also to potential users in business, charitable and public sectors, and to the general tax-paying public”. Although the policy was introduced in 2013, its effects have only been recently appreciated due to the lengthy peer-review process that takes an initial manuscript to a final publication.
Currently two models of open access are in use: the so called “gold” model whereby authors pay journals a fee to make their articles openly available, and the “green” model whereby the article is uploaded to a central repository to which the public have access. As the “gold” model is associated with the extra expense of hefty publication fees, it is to be expected that we will see increasing use of centralised repositories as researchers comply with the new RCUK policy via “green” open access. Some repositories, such as the arXiv or PMC, are already well developed and regularly used by researchers in certain fields. As scientific papers are often cited as relevant prior art during the prosecution of patent applications, what are the implications of this change of policy from a patents perspective?
If central repositories continue to grow as a result of the policy changes, they will likely serve as a useful resource for searching and obtaining non-patent prior art, both during the examination of patent applications and during opposition proceedings. The increased ease with which such material can be accessed also means that the notional “skilled person”, used in assessing inventive step, may be expected to be familiar with a greater amount of non-patent literature. This appears especially true given RCUK’s aim of increasing visibility of the published research beyond scientific or academic circles.
This final point seems to have been borne out recently by Mr Justice Sales in Teva UK Limited & another v AstraZeneca AB  EWHC 2873 (Pat) (see here), in which he states that:
“Searches of [digital databases of journal articles] are part and parcel of the routine sharing of information in the scientific community and are an ordinary research technique. In my view, if there is a sufficient basis (as here) in the background CGK [common general knowledge] relating to a particular issue to make it obvious to the unimaginative and uninventive skilled person that there is likely to be – not merely a speculative possibility that there may be – relevant published material bearing directly on that issue which would be identified by such a search, the relevant CGK will include material that would readily be identified by such a search.”
In other words, Mr Justice Sales believes common general knowledge includes not just what the skilled person is expected to know, but also what he might expect to exist and be readily available in a database. As similar initiatives promoting open access publishing continue to be implemented around the world, it will be interesting to see how the common general knowledge with which the skilled person is deemed to be familiar continues to change.
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.