 | The perspective and/or examples in this article do not represent a world-wide view. Please edit the article to improve its geographical balance. | The person having ordinary skill in the art (often abbreviated PHOSITA in the United States), the person skilled in the art or the man skilled in the art is a legal fiction found in many patent laws throughout the world. This fictional person is considered to have the normal skills and knowledge in a particular technical field, without being a genius. He or she mainly serves as a reference for determining, or at least evaluating, whether an invention is non-obvious or not (in US patent law), or does involve an inventive step 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, then the particular invention is considered not patentable. Image File history File links Download high resolution version (3000x3002, 6358 KB) The Blue Marble: This photo is of Africa, Antarctica, and the Arabian Peninsula as taken en route to the Moon by Apollo 17s Harrison Schmitt on December 7, 1972. ...
Within the context of a national or multilateral body of law, an invention is patentable or, in other words, it satisfies the patentability requirements if it meets the legal conditions to be granted a patent. ...
In patent law, an inventor is the person, or persons in United States patent law, who contribute to the claims of a patentable invention. ...
Novelty is a patentability test, according to which an invention is not patentable if it was already known before the date of filing, or before the date of priority if a priority is claimed, of the patent application. ...
Non-obviousness is term used in US patent law to describe one of the three requirements that an invention must meet to qualify for patentability. ...
The inventive step is a patentability requirement present in most European patent laws, and in particular in the European Patent Convention (EPC). ...
Utility (patent) or industrial applicability is a patentability test. ...
In patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i. ...
In most patent laws, prior art or state of the art is all information that has been disclosed to the public in any form before a given date. ...
In the common law, legal fictions, are suppositions of fact taken to be true by the courts of law, but which are not necessarily true. ...
A patent is a set of exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or substance (known as an invention) which is new, inventive and useful. ...
Corruption Jurisprudence Philosophy of law Law (principle) List of legal abbreviations Legal code Intent Letter versus Spirit Natural Justice Natural law Religious law Witness intimidation Legal research Critical legal studies External links Wikibooks Wikiversity has more about this subject: School of Law Look up law in Wiktionary, the free dictionary...
In lay terms, an invention is a novel device, material, or technique. ...
Non-obviousness is term used in US patent law to describe one of the three requirements that an invention must meet to qualify for patentability. ...
The inventive step is a patentability requirement present in most European patent laws, and in particular in the European Patent Convention (EPC). ...
World map showing location of Europe When considered a continent, Europe is the worlds second smallest continent in terms of area, with an area of 10,600,000 km² (4,140,625 square miles), making it larger than Australia only. ...
In most patent laws, prior art or state of the art is all information that has been disclosed to the public in any form before a given date. ...
Within the context of a national or multilateral body of law, an invention is patentable or, in other words, it satisfies the patentability requirements if it meets the legal conditions to be granted a patent. ...
In some patent laws, the person skilled in the art is also used as a reference in the context of other criterions, 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). Sufficiency of disclosure refers to the legal requirement that the description of an invention in a patent contain specific information about the invention. ...
In law, a patent infringement occurs when the subject-matter claimed in a patent has been utilized by someone other than the rightholder, without the owners approval or in disagreement with the terms of use given by the owner. ...
The doctrine of equivalents is a legal rule in most of the worlds 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 of a patent claim, but nevertheless is equivalent...
In practice, this legal fiction is a set of legal fictions which evolved over time and which may be differently construed for different purposes. It may be said that this legal fiction basically translates the need for each invention to be considered in the context of the technical field it belongs to.
United States A person having ordinary skill in the art is a legal fiction defined in the Patent Act of the United States. The PHOSITA is a test of "obviousness" which is one of the largest gray areas in patent law. In the common law, legal fictions, are suppositions of fact taken to be true by the courts of law, but which are not necessarily true. ...
- A patent may not be obtained though the invention ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. (35 U.S.C. § 103 (A))
In most patent laws, prior art or state of the art is all information that has been disclosed to the public in any form before a given date. ...
Within the context of a national or multilateral body of law, an invention is patentable or, in other words, it satisfies the patentability requirements if it meets the legal conditions to be granted a patent. ...
Comparison Quite similar to the logic of "reasonable person" used in the common law of torts as a test of negligence, the PHOSITA is a hypothetical individual, neither a genius nor a layperson, created in the mind of a patent examiner or the jury to see if a claimed invention is too obvious to be patented. The reasonable man or reasonable person standard is a legal fiction that originated in the development of the common law. ...
This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...
In the common law, a tort is a civil wrong for which the law provides a remedy. ...
In law, negligence is a type of tort or delict that can be either criminal or civil in nature. ...
A genius is a person with distinguished mental prowess. ...
A layperson is someone who is not a clergyman/clergywoman or (other meaning) who is not a professional person. ...
This article can be confusing for some readers, and needs to be edited for clarity. ...
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 (USPTO) is required by statute to award that applicant a patent. The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that provides patent and trademark protection to inventors and businesses for their inventions and corporate and product identification. ...
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 reviewed academic journal. The date of a sanctioned prior art can be a little later than the patent's application date: Peer review (known as refereeing in some academic fields) is a scholarly process used in the publication of manuscripts and in the awarding of funding for research. ...
Plato is credited with the inception of academia: the body of knowledge, its development and transmission across generations. ...
In most patent laws, prior art or state of the art is all information that has been disclosed to the public in any form before a given date. ...
- Examiner properly relied upon prior art publication in rejecting claims for production of [certain antibodies] ... under [35 U.S.C. § 103], even though publication itself is not prior art against present claims, since publication establishes level of ordinary skill in art at and around time of present invention. Ex parte Erlich, 22 USPQ.2d 1463 (Bd.Pat.App. & Inter. 1992).
Capacity The term "ordinary skill" is not rigidly defined. The requirements of a nuclear physicist of ordinary skill are surely different from a chef of ordinary skill. An invention that involves aerodynamics takes a different kind of "ordinary skill" from another that involves woodworking. Nuclear physics is the branch of physics concerned with the nucleus of the atom. ...
A chef (also executive chef or chef de cuisine), from the French for chief or head person, is the executive in charge of a kitchen, responsible for recipe and menu creation, staff training, and overseeing all cooking. ...
Aerodynamics is a branch of fluid dynamics concerned with the study of gas flows, first analysed by George Cayley in the 1800s. ...
Artists can use woodworking to create delicate sculptures. ...
- 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.
- Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 696, 218 USPQ 865, 868 (Fed. Cir. 1983), cert. denied, 464 U.S. 1043 (1984).
The Federal Circuit In the last twenty years, the Court of Appeals for the Federal Circuit has dramatically limited the application of PHOSITA in its obviousness analysis. In a number of cases, the Federal Circuit only invalidated patents for obviousness when there was evidence in the prior art that presented a "suggestion or incentive" to combine the prior art. ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 1577 (Fed. Cir. 1984). This is known as the "suggestion test." Under the suggestion test, a PHOSITA's ability to reason two prior art references together does not matter. As a matter of law, the "suggestion test" finds no support in §103. The United States Court of Appeals for the Federal Circuit, or simply the Federal Circuit, was founded in 1982 to combine similar federal cases to a specialized appellate court. ...
In most patent laws, prior art or state of the art is all information that has been disclosed to the public in any form before a given date. ...
In fact, in an earlier Supreme Court decision, the court seemed to reject such a "suggestion test." In Graham v. John Deere Co., 383 U.S. 1, 9 (1966), the court rejected an argument that noted "nothing in the prior art suggest[s]" a "unique combination of these old features" in the claimed invention. However, since the Federal Circuit's invention of "suggestion test," the Supreme Court has yet to hear a case on obviousness.
This issue may change as a petition for certiorari has been filed in the KSR v. Teleflex case. Look up Petition in Wiktionary, the free dictionary A petition is a request to an authority, most commonly a government official or public entity. ...
Certiorari is a legal term in Roman, English and American law referring to a type of writ seeking judicial review. ...
The PHOSITA redux Because patent examiners are usually under very heavy workloads, they may not be able to look beyond the patent database and a few other frequently consulted sources. From time to time, patents regarded as obvious by people in the trade are patent protected. Some holders of these questionable patents will file lawsuits against their competitors. If the defendant can prove the existence of a prior art that can render the patent obvious before the patent's application date, the patent will be invalidated. // A lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal remedy. ...
Competition is the act of striving against another force for the purpose of achieving dominance or attaining a reward or goal, or out of a biological imperative such as survival. ...
A defendant is any party who is required to answer the complaint of a plaintiff in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ...
In the patent litigation, the accused infringer may first claim that he/she did not infringe the plaintiff's patent. If the court finds otherwise, the defendant can still claim that patent as obvious. If the court decides that a person having ordinary skill in the art can invent that same thing, the patent is invalidated and the defendant wins. From then on, everyone, not just the plaintiff, can use the formerly patented invention without paying any license fee. A plaintiff, also known as a claimant, or a complainant is the party who initiates a lawsuit (also known as an action) before a court. ...
A defendant is any party who is required to answer the complaint of a plaintiff in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ...
One of the frequent criticisms of software patents is the large number of patents which seem to violate the PHOSITA standard, but which are nevertheless granted by the US Patent Office and other countries' patent offices, presumably due either to overworked or underqualified patent examiners, or due to deficient process in analyzing whether an invention is non-obvious. Software patents and patents on computer-implemented inventions (CII) are a class of patents and one of many legal aspects of computing. ...
Fictional example
 Wilma's invention, Bedrock Patent No. 000,001 |
 Fred's invention (patent pending) | Wilma Flintstone invented the rock wheel (Bedrock Patent No. 000,001). In her patent application, she explicitly said the wheel has to be made of stone. Highways in Bedrock were not paved well. It will be helpful if each people drives a roller to work. Pic of Flintstones characters This work is copyrighted. ...
Pic of Flintstones characters This work is copyrighted. ...
Download high resolution version (904x606, 103 KB)tree trunk as seen on the Veluwe, The Netherlands Author: me, Paul Vlaar Date: 2001-04-01 Source: http://www. ...
Download high resolution version (904x606, 103 KB)tree trunk as seen on the Veluwe, The Netherlands Author: me, Paul Vlaar Date: 2001-04-01 Source: http://www. ...
Betty Rubble and Wilma Flintstone. ...
Sedimentary, volcanic, plutonic, metamorphic rock types of North America. ...
A wheel is a circular object that, together with an axle, allows low friction in motion, by rolling. ...
Bedrock was the fictional prehistoric city located in Cobblestone County that was home to the characters of the television animated series The Flintstones. ...
Mitchell Freeway in Perth, Western Australia For other uses, see Highway (disambiguation). ...
The roller is an agricultural tool used for flattening land or breaking up large clumps of dirt, especially after plowing. ...
Fred Flintstone saw his wife's wheel and reinvented the exact same round thing. Only this time he used a section of timber instead of rock. He filed an application to the Bedrock Patent Office. The patent examiner, Barney Rubble, wisely noticed there once was a similar but slightly different invention (prior art). This time our beloved Barney has to come up with a PHOSITA to see if Fred's invention deserves a patent. Fred Flintstone Frederick Flintstone (usually called Fred) is a fictional character who originated in the popular television animated series The Flintstones. ...
Timber Timber is a term used to describe wood throughout its processing from the time it is planned for use in industrial products to the time it is used as a structural material or in other industrial product, such as wood pulp for paper production. ...
Barney Rubble, a fictional character in the popular television animated series The Flintstones, is the blonde-haired caveman husband of Betty Rubble and adoptive father of Bamm-Bamm Rubble. ...
What should an ordinary stone age automobile builder know? Barney has to decide what other things an automobile builder would do in cold winter days when the stone car company is closed due to the heavy snow. Stone Age fishing hook. ...
An automobile is a wheeled vehicle that carries its own motor. ...
He found Fred's invention quite obvious to the imaginary PHOSITA. So he established a prima facie case of obviousness. The burden of proof of non-obviousness shifted to poor Fred who was just as speechless as a piece of lumber. He failed to prove why that PHOSITA could not invent a wooden wheel from Wilma's rock wheel. Under the preponderance of the evidence rule, the Bedrock Patent Office refused to award Fred a patent. Prima facie is a Latin expression meaning at first sight, used in common law regions to denote a case that is strong enough to justify further discovery and possibly a full trial. ...
Burden of proof is the obligation to prove allegations which are presented in a legal action. ...
Lumber is the name used, generally in North America, for wood that has been cut into boards or other shapes for the purpose of woodworking or construction. ...
Preponderance of the evidence is the level of burden of persuasion typically employed in the civil procedure. ...
Europe Patent Convention The European Patent Convention states in its article 56 [1] 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 European Patent Convention (EPC) or Convention on the Grant of European Patents of 5 October 1973 is a legal text instituting the European Patent Organisation and the system according to which European patents are granted. ...
In most patent laws, prior art or state of the art is all information that has been disclosed to the public in any form before a given date. ...
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 Patent Act (Patentgesetz) requires that the invention "cannot be derived by a Fachmann from the state of the art in an obvious manner".1
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"2
1 ("... wenn sie sich für den Fachmann nicht in naheliegender Weise aus dem Stand der Technik ergibt.", Art. 4 of the Patentgesetz).
2 "Sachverständiger mit durchschnittlichem Wissen und Können, den man üblicherweise mit der Lösung der (objektiven) Aufgabe der Erfindung betrauen würde" (stRspr - BPatG Mitt. 84, 213, T 32/81 Abl. 1982, 225)
Incomplete implementations of the obviousness test Patent examination is a costly and time consuming process. In many small countries or jurisdictions such as Singapore and Hong Kong, a patent may be issued based on a prior art search report made by a sanctioned international searching authority. Even though these patents were not prosecuted before issue, in case the patentee files a lawsuit against an accused infringer, the patent's validity will still be tested for its obviousness in the court.
External links |
Feeds |
Contact