What is a Person Having Ordinary Skill in the Art?
A person having ordinary skill in the art is a legal construct utilized as a tool to standardize the estimation and evaluation of patentability requirements.3 min read
A person having ordinary skill in the art is a legal construct utilized in patent law as a tool to standardize the estimation and evaluation of patentability requirements. Sometimes known as a "person skilled in the art" or abbreviated as PHOSITA, this legal parameter is used in cases of non-obviousness, interpretation of the claimed idea in the prosecution of applications, patent litigation, insufficient disclosure, and infringement proceedings.
A person skilled in the art is expected to have average knowledge, ability, and awareness in the field at that time. He or she is expected to be a skilled practitioner in the applicable field of technology. Everything in the "state of the art" should be accessible to him or her, including the cited search report documents and the means and capacity for ordinary work and experimentation related to the applicable field of technology.
If the issue causes the person skilled in the art to find a solution in another field, a specialist is the person who is able to solve the issue. Based on the specialist's ability and knowledge, a specialist can assess whether the solution requires an inventive step.
In the applicable technical field, the skilled person is engaged in continuous development. He or she may seek suggestions in related or general fields, or even in remote fields, if requested to do so. Currently, the average experience and legal definition of a claim of the person having ordinary skill in the art is not explicitly defined.
Determining Ordinary Level of Skill
A person having ordinary skill in the art is a hypothetical person who is assumed to have been aware of the relevant art at the time of the creation. Legally, there are a few factors that can be taken into consideration in order to determine the level of ordinary skill in the art as associated with patent law:
- Type of problems encountered in the art
- Prior art solutions to those problems
- Rapidity with which innovations are made
- Sophistication of technology
- Educational level of active workers in the field
It's not necessary for every factor to be present in a case. One or more factors may be of central concern. The courts have determined some definitive conclusions in the following cases:
- KSR Int'l Co versus Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007) has determined that a person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.
- Id at 420, 82 USPQ2d at 1396 has determined that office personnel may also take into account "the interferences and creative steps that a person of ordinary skill in the art would employ."
- The "hypothetical 'person having ordinary skill in the art' to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art."
- Nat'l Steel Car, Ltd. v. Can. Pac. Ry., Ltd., 357 F.3d 1319, 1338, 69 USPQ2d 1641, 1656 (Fed. Cir. 2004) has determined that although a drawing made by an engineer was not prior art, it could nonetheless "be used to demonstrate a motivation to combine implicit in the knowledge of one of ordinary skill in the art."
- Ex parte Erlich, 22 USPQ 1463 (Bd. Pat. App. & Inter. 1992) has determined that references that do not quality as prior art due to the postdate of the claimed invention may still be relied upon to show the level of ordinary skill in the art at or around the time the invention was made.
- Ex parte Hiyamizu, 10 USPQ2d 1393, 1394 (Bd. Pat. App. & Inter. 1988): The Board did not agree with the examiner's definition of a person having ordinary skill in the art (which was a doctorate level engineer or scientist working at least 40 hours a week in semiconductor research or development), and found that the hypothetical person is not able to be defined by way of credentials, and that such evidence in the application did not support the notion that such a person would need a doctorate or equivalent knowledge or experience in science in engineering.
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