What is the test for “obvious to try”?
Canada (Federal), Canada
The following excerpt is from Purdue Pharma v. Pharmascience Inc., 2009 FC 726 (CanLII):
Some cases have conflated the concept of “obvious to try” with “obvious to work”. However, as Mr. Justice Rothstein stated in Plavix at paragraph 65: “…I am of the opinion that the “obvious to try” test will work only where it is very plain or, to use the words of the Jacob L.J. [in Saint-Gobain PAM SA v. Fusion Provida Ltd., [2005] EWCA Civ 177], more or less self-evident that what is being tested ought to work.”
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