A person having ordinary skill in the art (abbreviated PHOSITA), a person of (ordinary) skill in the art (POSITA or PSITA), a person skilled in the art, a skilled addressee or simply a skilled person is a legal fiction found in many

patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...

laws throughout the world. This hypothetical person is considered to have the normal skills and knowledge in a particular technical field (an "art"), without being a genius. The person mainly serves as a reference for determining, or at least evaluating, whether an invention is non-obvious or not (in U.S. patent law), or involves an

inventive step The inventive step and non-obviousness reflect a general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive—i.e., non-obvious—in order to be patented. In other words, " henon ...

or not (in European patent laws). If it would have been obvious for this fictional person to come up with the invention while starting from the

prior art Prior art (also known as state of the art or background art) is a concept in patent law used to determine the patentability of an invention, in particular whether an invention meets the novelty and the inventive step or non-obviousness criteria ...

, then the particular invention is considered not

patentable Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent. By extension, patentability also refers to the substantive conditions that must be met for ...

. In some patent laws, the person skilled in the art is also used as a reference in the context of other criteria, for instance in order to determine whether an invention is sufficiently disclosed in the description of the patent or patent application (sufficiency of disclosure is a fundamental requirement in most patent laws), or in order to determine whether two technical means are equivalents when evaluating infringement (see also

doctrine of equivalents The doctrine of equivalents is a legal rule in many (but not all) of the world's patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope ...

). In practice, this legal fiction is a set of legal fictions which evolved over time and which may be differently construed for different purposes. This legal fiction basically translates the need for each invention to be considered in the context of the technical field it belongs to.

Canada

The '' Patent Act (R.S.C., 1985, c. P-4)'' makes explicit reference to a "person skilled in the art" in the s. 28.3 requirement that the subject matter of a patent be non-obvious. The ''person skilled in the art'' is described in ''Beloit Canada Ltd. v. Valmet Oy'':

the technician skilled in the art but having no scintilla of inventiveness or imagination; a paragon of deduction and dexterity, wholly devoid of intuition; a triumph of the left hemisphere over the right. The question to be asked is whether this mythical creature (the man in the Clapham omnibus of patent law) would, in the light of the state of the art and of common general knowledge as at the claimed date of invention, have come directly and without difficulty to the solution taught by the patent.

European Patent Convention

The

European Patent Convention The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to ...

(EPC) refers to the skilled person in and provides for that "an invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art". The EPC also refers to the skilled person in , which requires that " e European patent application must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art". Still further, the Protocol on the Interpretation of refers to the skilled person. Article 1, 2nd sentence, states that " r should it rticle 69 EPCbe taken to mean that the claims serve only as a guideline and that the actual protection conferred may extend to what, from a consideration of the description and the drawings by a "person skilled in the art", the patent proprietor has contemplated". The

European Patent Office The European Patent Office (EPO) is one of the two organs of the European Patent Organisation (EPOrg), the other being the Administrative Council. The EPO acts as executive body for the organisation

provides guidelines that set forth some of the skilled person's capabilities. A related concept is the "business person", who is also a notional person. It is used at the EPO when assessing inventive step of an invention involving both technical and non-technical elements. The business person "represents an abstraction or shorthand for a separation of business considerations from technical".

United States

A person having ordinary skill in the art is a legal fiction first codified in the

Patent Act of 1952 A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...

. The PHOSITA is a test of "obviousness" which is one of the largest gray areas in patent law. The PHOSITA appears again in slightly different words in the provision requiring a proper disclosure:

Comparison

Quite similar to the logic of "

reasonable person In law, a reasonable person, reasonable man, or the man on the Clapham omnibus, is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions. Strictly according to the fiction, it i ...

" used in the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

s as a test of

negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...

, the PHOSITA is a hypothetical individual, neither a

genius Genius is a characteristic of original and exceptional insight in the performance of some art or endeavor that surpasses expectations, sets new standards for future works, establishes better methods of operation, or remains outside the capabili ...

nor a layperson, created in the mind of a

patent examiner A patent examiner (or, historically, a patent clerk) is an employee, usually a civil servant with a scientific or engineering background, working at a patent office. Major employers of patent examiners are the European Patent Office (EPO), the Un ...

or the

jury A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. Juries developed in England du ...

to see if a claimed invention is too obvious to be patented.

Creation

During the examination of a patent application, the examiner tries to find out if that invention has already been invented by another person. If so, the patent application will be returned to the applicant to be narrowed or modified. If not, the examiner will bring out the PHOSITA test to check if that invention is so obvious that people in the trade will invent it with or without patent applicant's efforts. In the end, if the examiner can not discover a piece of prior art that may lead the PHOSITA to the invention, the

United States Patent and Trademark Office The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that serves as the national patent office and trademark registration authority for the United States. The USPTO's headquarters are in Alex ...

(USPTO) is required by statute to award that applicant a patent. It is well known that it may take a few months or a couple of years for a paper to be published in a

peer review Peer review is the evaluation of work by one or more people with similar competencies as the producers of the work ( peers). It functions as a form of self-regulation by qualified members of a profession within the relevant field. Peer revie ...

academic An academy (Attic Greek: Ἀκαδήμεια; Koine Greek Ἀκαδημία) is an institution of secondary or tertiary higher learning (and generally also research or honorary membership). The name traces back to Plato's school of philosophy, ...

journal. The date of a sanctioned

can be a little later than the patent's application date:

Capacity

The term "ordinary skill" is not rigidly defined. : Factors that may be considered in determining level of ordinary skill in the art include :* the educational level of the inventor; :* type of problems encountered in the art; :* prior art solutions to those problems; :* rapidity with which innovations are made; :* sophistication of the technology; and :* educational level of active workers in the field.

''KSR v. Teleflex''

The Supreme Court reversed a decision by the

Court of Appeals for the Federal Circuit The United States Court of Appeals for the Federal Circuit (in case citations, Fed. Cir. or C.A.F.C.) is a United States court of appeals that has special appellate jurisdiction over certain types of specialized cases in the U.S. federal court ...

based on how the lower court defined the capabilities of a PHOSITA. ''KSR v. Teleflex'' was decided by a unanimous Supreme Court on April 30, 2007. Importantly, Justice

Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...

's opinion stated, "A person of ordinary skill is also a person of ordinary creativity, not an automaton." Although the Court's opinion acknowledged other Federal Circuit cases that described a PHOSITA as having "common sense" and who could find motivation "implicitly in the

," Kennedy emphasized that his opinion was directed at correcting the "errors of law made by the Court of Appeals in this case" and does not necessarily overturn all other Federal Circuit

precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...

. Once the PHOSITA is properly defined, ''KSR v. Teleflex'' described how obviousness should be determined:

Elsewhere

Practically all patent legislations disallow the patentability of something obvious. Hence, it is no surprise that the laws of other countries have similar formulations. For example, the

German German(s) may refer to: * Germany (of or related to) ** Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law **Ge ...

Patent Act (''Patentgesetz'') requires that the invention "cannot be derived by a ''Fachmann'' from the state of the art in an obvious manner". The word ''Fachmann'' (an ordinary German word meaning somebody who has professional knowledge in a field) is made specific by ''ständiger Rechtsprechung'' (usual court opinion) as a "specialist with average knowledge and talent whom one would ordinarily ask to seek a solution for the (objective) problem the invention deals with"

Decoupling

It is commonly assumed that the PHOSITA (or its European equivalent) in the non-obviousness provision and in the disclosure provision are the same person. Raising the non-obviousness bar (as has been proposed by people concerned about "trivial patents" being granted) therefore implies that the requirements for disclosure are lowered: if more inventions are considered "trivial", the PHOSITA is apparently considered smarter, so they do not need an elaborate disclosure. Some writers therefore have proposed to "decouple" the PHOSITA.

References

External links

* : "Person skilled in the art"
M.P.E.P. Section 2141, Examination Guidelines for Determining Obviousness Under 35 U.S.C. 103
{{Use Oxford spelling, date=July 2018 Legal fictions Patent law