- Acronym of person having ordinary skill in the art. (Wiktionary)
“One of the complaints we've had about the patent system and current patent law is that the law clearly says that patents should only be granted on things that are new and non-obvious to a person having ordinary skill in the art (the so-called PHOSITA).”
“England as a comparator: there, the criteria are similar; they use PHOSITA; they have similar discovery; claim construction is a matter for the judge; claim construction is typically outcome determinative.”
“It overturns 50 years of case law development and asks us to begin anew in defining PHOSITA as a person rather than an automaton and as one who has ordinary creativity and "common sense".”
“So, what has complexity theory have to say about the tension between strong ‘closed’ IPR rights on the one hand and more ‘open’ systems of innovation that depend on the inherent creativity and inventiveness of persons skilled in the art PHOSITA in an increasingly global product development context?”
“The reason the concept of PHOSITA is introduced is to assess the inventivity of the technical contribution, which is rendered moot when PHOSITA is elevated to the level of the inventors.”
“Scenario #5: Make TSM test a “question of law” now “factual” requiring specific citations to prior art or doctrines in knowledge of PHOSITA”
“Bizarre indeed to equate PHOSITA with the inventors.”
“By construction, PHOSITA is not capable of making a non-obvious contribution, while by definition otherwise a case is not neccerary the applicants are thus capable.”
“In almost all non-obvious opinions, the Federal Circuit explicitly identifies the nature of the problem and knowledge of a PHOSITA as potential sources for finding a suggestion to combine references.”
“A decision-maker can depend on these criteria, therefore, to identify motivations for combination that no PHOSITA has bothered to record or document, either because the combination seems basic, because technological advance is occurring rapidly, or for some other reason.”
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