PHOSITA stands for “person having ordinary skill in the art.” PHOSITA is used regularly in a court of law when developing a patent. It helps determine the viability of an invention based on the skills and expertise of those having very specialized training in very narrow areas.

How Specialized is a PHOSITA?

PHOSITA is a type of hypothetical person that has omniscient understanding of a publication in the same field on the day of the filing, but ordinary skill. To be patentable, the invention cannot be obvious with regard to PHOSITA.

For instance, if you want to patent a widget that is a connection between a “doohickey” and a “thingy” in an engine, it may be obvious to an engine designer, interesting to a marine engine designer, and completely oblivious to the layperson who never deals with engines.

When obtaining an examination with the USPTO, the level of PHOSITA is typically not covered as well as it could be. PHOSITA can be an issue of debate in court. In general, the PHOSITA needs to be specific to the field.

PHOSITA Case Reissued as Precedential

PHOSITA stands for “person having ordinary skill in the art.” A lot of the patent laws will depend on this hypothetical person. In particular, the obviousness and the construction determination will depend on how the court defines PHOSITA in the suit. Still, there is little guidance when it comes to Federal Circuit case law.

The CAFC has now reissued an opinion that is identical as precedential, meaning it is worth thinking about any implications and what they could be.

There was a case recently involving ofloxacin, which is an antibiotic that is used topically for treating infections in the ear. While there are many ramifications to applying topical solution to the ear, those specializing in the field are equipped to know that ciprofloxacin did not show any damage.

While ofloxacin and ciprofloxacin are similar antibiotics with a similar structure, those who were cognizant of the success of ciprofloxacin would have had the necessary motivation to utilize ofloxacin in the same way.

However, the District Court had general physicians and pediatricians within the group of those who have ordinary skill in this particular art.

Since they were non-specialized, they did not use or rarely used ciprofloxacin to help aid infections of the ear. The court then ruled that the success of ofloxacin wouldn’t be obvious to PHOSITA.

The Federal Circuit eventually reversed the decision, stating that the District Court did not limit the PHOSITA to specialists, such as otologists and those working to develop formulations of pharmaceuticals.

Because the smaller subsection of people with this particular expertise would know that ciprofloxacin would be successful, using ofloxacin would be obvious. In this case, the CAFC came to the best result. PHOSITA’s art field relies on the nature of the invention. Those who do not specialize in this field would not be included in the class of skilled artisans.

This case firmly illustrates the possible risks of setting the level of ordinary skill much too low. If you include general physicians in a class of skilled artisans in cases such as this, there would be little to no invention of pharmaceuticals, as they would not be obvious.

Time to Reconsider PHOSITA

Crucial to issuing patents is ensuring that there is consistency and stability during the examination process.

What do patents generally mean?

  • You need to think about what the patent focuses on with regard to being obvious and how it relates to the merit of the invention.
  • The patent document must explain fully what the invention is and the rights that have been granted to the person filing the application.
  • Clarity of a patent does not always have a one-size approach.
  • It is a technical document that explains a new invention and is not understandable by a layperson.
  • What helps one understand a patent is dependent on that person who is reading it and who its directed to. This is where PHOSITA comes into play.

If you need help with understanding PHOSITA and all that it entails, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law, and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.