Case Comment

General Tire & Rubber Company v.
Firestone Tyre & Rubber Company Limited and Others

citation(s): [1971] R.P.C. 173 (per Graham, J.)

copyright 1997-2004 Donald M. Cameron, Ogilvy Renault




The Decision

At p. 232

"It has been said, and was said here by Mr. MacCrindle, that Lord Parker's statement makes it clear that it is sufficient if it is shown that the prior document gives instructions which, if followed, will inevitably produce a result which falls within the plaintiff's claim even if that result is not as in fact described. This, I think, is correct, but it must be quite certain that the result does inevitably follow from following the instructions."

At p. 232

"As seen later, I think that it is probably right in a case of this type to put together the knowledge of a chief compounder and a rubber technologist of the type of Dr. Smith and Dr. Duck, suitably loading the emphasis which one places on their relative contributions, having regard to the practical aspects of the art - a matter dealt with more fully later under obviousness."

At pp. 245-246

"The whole of the relevant prior art must be assumed to be in the mind of the skilled addressee and this may well produce, and would produce here, as the history of the matter shows, quite a different result from that which would be produced if a careful selection from prior art is made, having the invention which is sought to be attached in mind. For this purpose Sir Lionel Heald submitted that the art could in this case more properly be represented by his list entitled "Widely read publications", which included some of those cited by the defendants in the pleadings, but also a number of other well-known publications which certainly did not lead towards, and in some cases led away from, the plaintiffs' invention. This list included, for example, among other documents the British BIOS report, which emphasized that high Mooney Buna was always heat degraded, Hagen, the standard work on heat softening high Mooney rubbers, and The GR-S Manual of I.C.I., showing that the development of synthetic rubber was done in the U.S.A. and not here along the lines of producing a low Mooney GR-S in place of the German high Mooney Buna, which was difficult to process. Of these two arguments I have no hesitation in accepting that of the plaintiffs, and it seems to me to be very dangerous and in law not permissible to assess obviousness in the light of certain carefully selected pieces of prior knowledge only."


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