Moshe and Anat Gabai have developed a mattress that they believe is useful in minimizing the occurrence of Sudden Infant Death Syndrome (SIDS) in children. On allowance, Aminach, a large Israel mattress manufacturer opposed the patent issuing.
The Applicants who were not represented, managed to overcome the prior art objections relating to novelty and non-obviousness, but were unable to prove that their mattress was effective. Consequently, Deputy Commissioner Ms Jacqueline Bracha ruled that the patent be cancelled as contravening Section 3 due to it lacking utility.
At the time, the Applicants did not have experimental evidence, but they teamed up with a scientist and generated some evidence that their mattress had some value in minimizing cot deaths.
The Applicants appealed to the District Court, however the District Court was not willing to examine this new evidence that wasn’t before the Patent Office.
Undeterred, and this time with professional assistance, the applicants appealed to the Supreme Court which established that in such circumstances, new evidence may be submitted. The case was referred back to the District Court which ruled that the evidence could be accepted and referred the case back to the Israel Patent Office.
Ms Bracha is prepared to accept the evidence provided it is relevant.
I can develop a persuasive theory that the mattress design allows dissipation of carbon dioxide and helps a baby that is lying face down to breath freely. I can think of several ways of demonstrating utility and have discovered a university researcher who is able to run some useful experiments. Unfortunately, the only really convincing evidence would be to conduct experiments with a statistically significant pool of identical twin babies, one twin sleeping on regular mattresses and the other on the Applicant’s mattress. I find the idea a little obnoxious and do not see that utility requires proof.
I think the Gabai’s deserve a patent for this, and am impressed with their tenaciousness.