Person (Having) Ordinary Skill in the Art

by Dennis Crouch

One ongoing debate among patent attorneys is the proper abbreviation of the statutory phrases “person having ordinary skill in the art,” 35 U.S.C. 103, and “person skilled in the art,” 35 U.S.C. 112(a).

I prefer PHOSITA (Person Having Ordinary Skill In The Art) while many of my colleagues use POSITA (Person having Ordinary Skill In The Art) and in their recent petition to the Supreme Court, Mylan uses POSA (Person having Ordinary Skill in the Art), which was the abbreviation used by District Court Judge Stark in the case. Wikipedia also suggests PSITA (Person Skilled In The Art), which maps the language of section 112(a) instead of section 103.

I’m personally drawn to PHOSITA’s exact match to the statutory language of section 103, and I see capital “H” as strong and stable letter.  At the same time, I can understand why a party wanting to bolster the credibility the fictitious artisan might prefer POSITA since POSA suggests a “poser” with a Trans-Atlantic accent and the PHO beginning of PHOSITA also suggests falsity.

For its part, the Supreme Court has not used any of these abbreviations. At the Federal Circuit, most obviousness decisions also don’t use any of the abbreviations.  However, Judge Wallach regularly uses PHOSITA and Judge Reyna tends to use POSITA.  Several judges have also referred to a POSA, but almost always in the context of quoting a district court or expert opinion.   I don’t find any reference to PSITA in court cases.

The chart below shows that the PTAB’s favorite is POSITA with 68% of the cases having abbreviations.  Still, most PTAB cases just spell out the rule without any abbreviation at all.

With the PTAB’s trend so strongly toward POSITA, I’m going to reconsider my PHOSITA habit and try out POSITA for a few months to see if it fits.  Of course, I am still sour about my P-Tab loss (I was calling for P-T-A-B).

75 thoughts on “Person (Having) Ordinary Skill in the Art

  1. 16

    I have a question. Consider the following phrase:

    “The reasoning behind [alleged innovation X] is as simple as it is clever.”

    In the computing context, how often is it true that the “simple” is way, way, way, way more easy to appreciate than the “clever”? I’m guessing about 99.99% percent of the time. Coincidentally, that’s also the frequency at which the phrase is followed by a nearly exact analogy to some old data processing task.

    1. 16.1

      ?

      (maybe make a cogent legal argument….)

    2. 16.2

      “It is a rare mind indeed that can render the hitherto non-existent blindingly obvious. The cry ‘I could have thought of that’ is a very popular and misleading one, for the fact is that they didn’t, and a very significant and revealing fact it is too.”

      Douglas Adams, Dirk Gently’s Holistic Detective Agency

  2. 15

    In my view, the difference in language becomes very relevant when one is choosing an expert. Because 103 specifies “ordinary” skill in the art, one can run afoul of using someone too little skilled (to support nonobviousness), or too greatly skilled (to support obviousness). Inventors may represent someone of extraordinary skill in the art.

    Because 112 does not specify “ordinary,” one cannot run afoul of using one too little or too greatly skilled.

    1. 15.1

      …fragmentation…

      BTW, the “ordinary” IS there: “any person skilled in the art to which it pertains” – as the “skilled in” IS reflective of the juristic person.

      1. 15.1.1

        … as noted below, “skilled” requires a notion of what level of skill.

  3. 14

    I prefer “POSA” in briefs and when talking (or just “person of ordinary skill” or “skilled artisan” if it’s clear enough for context). The reason to have a short form in the first place is that “person having ordinary skill in the art” is a clunky phrase to say or to write. (much like “Patent Trial and Appeal Board” or “United States Court of Appeals for the Federal Circuit”). If you need to use the full phrase twice in a sentence, the sentence can quickly become a pain to follow.

    The best short form is as short, easy/not-weird-sounding to pronounce, and unambiguous as possible. “POSA” checks all 3 boxes: it’s 4 letters, 2 syllables, and in patent land everyone knows what you mean.

    “PSA” is three syllables when spoken (I presume one would say “P.S.A.” rather than “p-SAH”) and is ambiguous. The first thing I think of is “public service announcement.” “PHOSITA” is fine, but it’s three syllables when spoken, sounds vaguely like a Spanish-language term of endearment or diminutive size, the H, I, and T don’t need to be part of it, and on the printed page longer acronyms look like all-caps shouty text. “PSITA” is just weird.

  4. 13

    Meanwhile, in much of the rest of the world (as if anyone cares), PSA (for ‘person skilled in the art’) generally suffices.

    Is it being suggested that the choice of abbreviation actually affects the substantive law? This is just a signifier, after all.

    1. 13.1

      Mark, I care. But there are “issues” with “PSA”. Many think of it as “Prostate-specific antigen”. With others, what comes to mind is the EPO’s “PSA” roadmap for the examination of obviousness.

      It is news to me that “in much of the rest of the world” PSA is taken instead to mean “person skilled in the art”. Can you give examples of such usage, apart from within Australia?

      1. 13.1.1

        The first thing I think of when I hear or read “PSA” is Public Service Announcement, e.g.:

        Only you can prevent forest fires.

        Stop, Drop and Roll.

        Just say no.

        This is your brain on drugs.

        Don’t litter.

    2. 13.2

      Interestingly, the notion of “rest of the world” calls to mind the necessity of keeping it RILS, and (perhaps) why we should hold on to the existing “PHO” as that ‘sounds’ in “fake” and reminds us all that this person is NOT a real person, but instead is a juristic person.

      Can we be consistent in at least that approach?

    3. 13.3

      Within the Office, I think many of us associate PSA with Partial Signatory Authority.

      Personally, I like a phrase that someone else already mentioned – “ordinary artisan” – and when I’m speaking aloud about this topic, I sometimes use that term. But technically, it’s imprecise to leave words out from that phrase. In particular, “ordinary” and “in the art” are tempting to omit for brevity, but they are important concepts that affect the boundaries of what is permissible under the law.

      The exact form of the acronym is really only as important as the context it’s being presented in, though, and as long as a Person Having Ordinary Skill in the Law understands what is meant, it’s probably not critical which form you use.

  5. 12

    I prefer PHOSITA (Person Having Ordinary Skill In The Art) while… Wikipedia also suggests PSITA (Person Skilled In The Art), which maps the language of section 112(a) instead of section 103.

    I’m personally drawn to PHOSITA’s exact match to the statutory language of section 103…

    I am with you on PHOSITA for exactly this reason, but it might be worth cultivating a use of PSITA for the same reason. That is to say, it might be worth encouraging people to use different terms to describe the “ordinary” person of §103 and the “ordinary” person of §112 to emphasize that they are not the same “ordinary” person. The “ordinary” person of §112 is a collection of real people, while the “ordinary” person of §103 is a legal fiction.

    1. 12.1

      Greg, the distinction you perceive, between the ordinary §103 person and the ordinary §112 person, interests me. England recently discovered a different distinction. As to Germany, it is my understanding that it has not yet perceived any distinction at all.

      So I hope your comment will attract informative responses.

      1. 12.1.1

        Building on Paul’s observations in 11.1.1 below, it seems to me that you can look at this topic from two directions: first, U.S. statutory law; and second, philosophical underpinnings of the “ordinary skill” concept, which presumably should apply anywhere in the world that the sovereign wants the patent system to function in a workable and productive manner.

        (1) Coming at it from the first direction, we can observe that §103 speaks of “a person having ordinary skill in the art to which the claimed invention pertains,” while §112 speaks of “any person skilled in the art to which [the invention] pertains.” For convenience sake, I have emphasized the commonalities of those two formulations in italics, and the differences in bold.

        The first thing to notice here is that the two formulae differ right at the outset. Section 103 speaks of “a” person, while §112 speaks of “any” person. At this point, one does well to remember that where Congress uses different words, it is presumed to intend a different meaning. Burlington N&SFR Co. v. White, 548 U.S. 53, 63 (2006). In other words, one should start from the presumption that Congress intends a different signification here unless such an idea proves unsupportable.

        Quite the contrary, however, the understanding that a different signification is intended here is not only supportable but actually preferable, for exactly the philosophical reasons to be detailed in section (2) below. Before we pass on to that portion of the analysis, however, I would simply like to note the other differences in language between §103 & §112—viz. “ordinary” skill in §103, and “having skill” in §103 compared to “[being] skilled” in §112.

        (2) Setting aside the statutory analysis argument noted above (which, obviously enough, can only really apply to the jurisdiction whose statutes are phrased in this way, i.e., the U.S.), there is a sound philosophical reason why one should not want obviousness and enablement analyzed from the standpoint of the same “skilled person.” These reasons apply not only in the U.S., but really in any jurisdiction that wants its patent system to function in a workable and effective manner.

        The purpose of the obviousness requirement is to ensure that we do not grant monopolies on technology that is already in the art, but which has never before been explicitly enacted or described. The goal here is to exclude—not technologies that these artisans or those artisans have practiced—but rather technologies that most any artisan could practice, even if no individual artisan actually has done so. Therefore, it is necessary that obviousness be judged from the “objective” perspective of a (fictional) personage who is acquainted with everything that is already in the art, but who has no ability to push creatively beyond existing capabilities.

        In other words, the fictional nature of the PHOSITA is necessary to the very idea of the PHOSITA. Any given real world artisan is going to have limitations that one does not wish to impute to the PHOSITA, so the only way for the PHOSITA to function in concept is to create her as a legal fiction.

        By contrast, the whole point of enablement requirement is to ensure that the inventor’s disclosure is complete enough for real world artisans to put into practice. Far from being concerned with a legal fiction, the concern is with actual people. That is why the U.S. statute speaks of “any” person, a word that necessarily conveys the idea of plural skilled personss. It would be scant comfort to know that some fictional person reading the disclosure would learn enough to practice the claimed invention. Rather, the law is written as it is so as to ensure that actual living workers can read the disclosure and put it into practice.

        In other words, implicit in the respective functions of the obviousness and enablement requirements is the idea that one should be judged from the viewpoint of a quasi-omniscient fiction, and the other from the viewpoint of a real world person. Therefore, the person having skill of §103 is not—cannot be—the skilled person of §112.

        1. 12.1.1.1

          Great comment Greg. Only one sentence at which I baulk, to wit:

          “The goal here is to exclude—not technologies that these artisans or those artisans have practiced—but rather technologies that most any artisan could practice, even if no individual artisan actually has done so.”

          The word “obvious” derives from the Latin “ob Via” meaning “lying in the road”. Patents are supposed to promote the progress. Handing out patents for what is lying front and centre, in the middle of the road of technical progress, is to hinder rather than foster progress. Hence the prohibition on patenting anything obvious.

          Perhaps with your “technologies that the PHOSITA “could” practise” you mean the same thing. I flinch from your formulation, however, because it is far too easy for a judge (or jury), unconsciously influenced by hindsight knowledge of what the invention is, to dismiss it as something any skilled person “could” easily have put into practice (and therefore obvious). To set that as the test of patentability is to deny patents for deserving inventors. Recognising this, the EPO obviousness test often recites the mantra “not just could, but actually would” have combined the prior art references (to solve the objective technical problem).

          1. 12.1.1.1.1

            [T]he EPO obviousness test often recites the mantra “not just could, but actually would” have combined the prior art references…

            A worthy dose of precision, that. Naturally, I agree with your refinement.

          2. 12.1.1.1.2

            I hear what you are saying MaxDrei, and without disagreeing, I have to point out that there is another point that immediately attaches to your formulation:

            IF “actually would,” then the fair question is “Why has it not?”

            1. 12.1.1.1.2.1

              Great question. Entirely fair. If the “ordinary” worker, of ordinary creativity “would” have done it, then why has it still not yet been done? Greg, what do you say to that?

              However, the could/would test is an artefact of the EPO’s “problem and solution approach” to obviousness, under which the fixing of the above-mentioned “objective technical problem” (OTP, dare I suggest) is fundamental. Taken out of that EPO-PSA context, a could/would test is I suspect not very meaningful/useful, just as your perspicacious question reveals.

              How to fix the OTP? That’s something for another thread entirely.

              1. 12.1.1.1.2.1.1

                “If the ‘ordinary’ worker, of ordinary creativity ‘would’ have done it, then why has it still not yet been done?”

                A specious argument with regard to obviousness or lack of inventive step. There’s another statute for that concern — requiring novelty.

                1. Mr. Pain, my historical-pseudonym friend, it is entirely NOT a specious argument precisely because it points out that the underlying logic of the proposition ties to that other (related) segment of law.

                2. “If the ‘ordinary’ worker, of ordinary creativity ‘would’ have done it, then why has it still not yet been done?”

                  A specious argument with regard to obviousness or lack of inventive step.

                  Yup. And it’s been pointed out to the maximalist types before, a zillion times.

                3. “anon” it points out that the underlying logic of the proposition ties to that other (related) segment of law.

                  Word salad.

                  For f-cks sake, learn how to write in English.

              2. 12.1.1.1.2.1.2

                If the “ordinary” worker, of ordinary creativity “would” have done it, then why has it still not yet been done? Greg, what do you say to that?

                Sometimes, a proponent of obviousness comes up with a prima facie plausible account of how a PHOSITA could arrive at the claimed invention, and why a PHOSITA would arrive at the claimed invention, but one is forced to reconsider these prima facie plausible accounts when confronted with the question “well, if it was so obvious, why had no one done it?”. Sometimes. This is the insight of the “long felt, but unmet” strain of the “objective indicia of non-obviousness.”

                Consider, however, the case of Hotchkiss. It was not that the inventors there developed some new technology, such that before their invention one could not make porcelain doorknobs. Nor was there some misbegotten prejudice common among the makers of doorknobs, such that the artisans in this field would not venture to make porcelain door knobs.

                Rather, the limitation was just that at one point brass door knobs were en vogue, and then (for no obviously good reason) brass dropped out of style and porcelain took off. The whims of fashion are hard to explain, but suffice it to say a change in the direction of such whims is not “progress in the useful arts,” and the patent system does not exist to reward those who guess at the way that the whims are blowing.

                In other words, sometimes the answer to “why has no one done it?” is “no good reason at all.” In those cases, the conclusion of obviousness really should stand.

                [T]he could/would test is an art[i]fact of the EPO’s “problem and solution approach” to obviousness, under which the fixing of the above-mentioned “objective technical problem” (OTP…) is fundamental… How to fix the OTP? That’s something for another thread entirely.

                What is there to fix? The EPO approach to obviousness works better than ours here in the U.S. Why fix what is not broken?

                1. Two answers, Greg.

                  On your “fashion” point, EPO-PSA confines patentability to solutions of problems that are “technical”. That is what puts the “T” in “OTP”. Finding a more fashionable form of door handle is not a technical problem.

                  On your “fix” point, sorry Greg, for my ambiguity. I intended “fix” in the film development sense ie crystallize. I was not thinking of the word “fix” in the sense of “repair”.

                  Crystallizing the OTP is the essence of EPO-PSA. Do it wrong and you can come out with the “wrong” answer to the question “Obvious Y/N?”. It takes a while to grasp EPO-PSA. Hence my comment that it needs a different thread.

                2. Did we ever get a non-circular definition of “technical?”

                  Or was this one of those “it’s best to NOT define because the meaning may change over time” things…?

                  One reason I ask is that Deming et al certainly changed business methods by making them “technical” (at least according to some “definitions” of that word).

            2. 12.1.1.1.2.2

              @anon – “IF “actually would,” then the fair question is “Why has it not?””

              I believe this question is the crux of the secondary considerations analysis for obviousness. Maybe nobody felt the need for such an invention? Provide evidence of long-felt but unmet need. Maybe it isn’t a commercially valuable invention? Provide evidence of commercial success. Maybe it was just something everyone expected to be obvious but nobody had tried to do? Provide evidence of failure of others. Maybe what other inventors “actually would” do would not have been expected to achieve the results the inventor obtained? Provide evidence of unexpected results. These are all ways of essentially asking the USPTO, if “actually would” then “why have they not?”

              And the PTAB or court answer is usually that there was something besides the non-obviousness of the invention that resulted in the evidence presented as secondary considerations – like blocking patents, market control, more effective advertising compaigns, etc.

              1. 12.1.1.1.2.2.1

                Are you shifting who needs to prove what?

                1. Not me. The Examiner is only required to provide a “prima facie” case for obviousness; i.e., constructing an evidence-based argument that the ordinary worker “would have.” It has always been the requirement that an Applicant show that the ordinary worker actually would not have, either by pointing out errors in the Examiner’s prima facie case or by providing secondary considerations indicating that it wasn’t as straightforward as the Examiner’s combination of references would suggest.

        2. 12.1.1.2

          Thanks Greg that was interesting. Seems right too.

          1. 12.1.1.2.1

            Greg advances (coupled with bald comments from Paul) that:

            The “ordinary” person of §112 is a collection of real people, while the “ordinary” person of §103 is a legal fiction.

            Greg does add some depth to his assertion with both at least a cursory look at the legislative text as well as offers some “philosophical” reasoning in support of the assertion of “ordinary” (or real) versus legal fiction.

            Of course, the biggest problem with this position is that it is plainly incorrect.

            The law for BOTH 103 and 112 are written as to the level that an applicant must meet (that is, requirements for an applicant). Those levels – neither of those levels – call out for any type of “real person” metric. There is no setting up a “board” of real persons to which an applicant is processed against.

            And how could it?

            This, after all, is the law that we are talking about – a law concerned with the unknown and unknowable state of the art as new advances and innovation evolve. Such a law simply does not – and cannot be established with any sense of objective “real person” attributes, and thus the larger thrust of Greg’s view simply cannot be correct.

            That is why his foray into the philosophical underpinnings misses the mark. Yes, there is “allure” to think that an applicant’s submission is something that some “real person” somewhere must be able to glean “enough” from. But as noted, there is no possible way for the law to handle this type of “real person,” and therefore MUST be geared instead to a legal fiction.

            And given that this person thus must be a legal fiction, and given that the intent of the different laws of 103 and 112 are geared to different ends, this then indicates that SOME difference in language is not only permissible, but is also to be expected.

            So turning to Greg’s “legislative analysis,” we need to take a closer look and realize that NONE of the substantive wording is changed. Sure, as Greg points out, there is a difference between “a” and “any” as well as a difference between “tense” of “skill,” but these differences do NOT portend as Greg indicates. The substantive words are the same, so we can still use Greg’s Burlington quote and posit that the substantive meaning of the LEGAL FICTION is largely the same. In other words, using Greg’s own case cite, one should start from the presumption that Congress does NOT intent a substantive “different signification” here. Keeping in mind that 112 is merely intended to cover a different aspect of law than 103, that alone accounts for the SLIGHTLY different use of words in the phrases that speak of the Legal Fiction.

            Greg’s note of “difference” between being and having is likewise not fleshed out as something critically different, and is easily encompassed in the fact that 103 is not 112, without having to resort to a rather complicated and plainly unsupported notion that there are multiple and multiply different legal fictions at play.

            Patent law is complex enough without having to have (and see develop) multiple different legal fictions. Greg wants to make it a point that “real world artisans” should be able to take an applicant’s submission and have that submission be complete enough to practice.

            This is a “shiny” decoy though.

            The very same thing “could be” said as to 103 in that we would not want “any real world artisan” to be blocked by an applicant’s patent, if that patent were truly nothing more than an obvious advance over the state of the art. Just like non-obviousness, the requirement of enablement is actually a requirement FOR THE applicant. Both are requirements of the applicant. Both are set in law and both thus require a legal fiction as a bar (requirement) TO the applicant.

            Greg’s desire to “paint” the legal fiction of one as necessarily different than the legal fiction of the other is nothing more than bootstrapping his desired conclusion as something not to be proven, but to be accepted. The provided rationale is a mirage. The law is NOT written so as to ensure that actual living workers can read the disclosure and put it into practice.
            This is so because the law CANNOT be so written.

            Again, this comes from the fact that is necessary to write the law to encompass and control future innovation for which, no real person could exist at the time of writing the law. Legal fiction is an absolute necessity. Given this necessity, the mirage of Greg’s point becomes abundantly clear. As his “philosophical driver” disappears, and his legislative driver is shown to be woefully short (emphasizing the dissimilarity of the minor language points while glossing over the similarity of the substantive language points), I am left with wanting more to be persuaded.

            Maybe if there was an actual case that acknowledged or even reflected on any such differences. Maybe if the legislative record actually stated that there were some (any) substantive differences…

            As is, these two “persuasive” factors are not there. Instead, the legal fiction – the single legal fiction remains.

            1. 12.1.1.2.1.1

              I don’t anon. I am just not family with the cases, but it seems to me that Greg is right that they are treated differently. PHOSITA is considered to have all the relevant prior art in front of them. While for 112, the skilled person is assumed to be someone working in the field. I think Greg is right that they SHOULD be treated differently. Whether they have been is perhaps a different matter.

              I think they have from what I know. From my personal experience they have not been treated the same in litigation.

              I get your point, but I think I would want to see more cites.

              1. 12.1.1.2.1.1.1

                To the extent of “should,” that should merely aligns with the different aspects that the different laws are geared to.

                The undelying legal nature though REMAINS that the person is not — and cannot be — a real person and instead must be a person of legal fiction (even if that person of legal fiction is then turned to face a different legal notion).

                It is simply a mirage to think that somehow one is served by a legal fiction and the other is not.

                I too would like to see more cites as to this underlying philosophical premise being advanced that 112 requires “real” and 103 requires “PHO.”

                As I jokingly assert: you have to keep it RIL. Even as I may want more citations, I warn against a dependence on citations. Fragmenting that juristic person (with no ACTUAL legislative support on the substantive portions of the phrases) is NOT something that I want to be driven by legislating from the bench.

              2. 12.1.1.2.1.1.2

                While for 112, the skilled person is assumed to be someone working in the field.

                More care is needed with that statement.

                Both because you have fallen for the shiny and assumed a point to be proven (real person), but that for 103, the SAME “in the field,” or at least, “in the art” exists.

                Your comment inserts a difference to be proven, not assumed.

              3. 12.1.1.2.1.1.3

                Just as one example, 112 enablement cases typically use expressions of “not requiring undue experimentation” for the patent is suit. Completely different from 103 tests for prior art being applied against the patent in suit.

                1. Thanks Paul – your difference though is NOT in the juristic nature, but instead, is merely in the direction that THAT juristic person is then tasked with (in other words, no one is arguing that 103 and 112 are the same aspects of law to which the juristic person must handle in the same manner). This does not speak to the juristic person being a different juristic person – does not speak at all to that.

              4. 12.1.1.2.1.1.4

                I think Greg is right that they SHOULD be treated differently…, but I think I would want to see more cites.

                In the interest of intellectual honest, here are the case law problems with my thesis:

                (1) Obviousness is an issue of law. This makes sense, because the PHOSITA is a legal fiction, so the ultimate issue of what this fictitious legal person would think cannot help but be a matter for judges—not juries—to decide.

                (2) Compliance with the written description requirement is an issue of fact. Once again, this makes sense, because want we want to know is whether real people—who work in the field—can recognize that the inventor described the claimed invention in the application as filed. The question of what these real people think is something that can be conveyed by expert testimony, whose credibility is to be assessed by the trial of fact.

                but

                (3) Compliance with the enablement requirement is a question of law. This makes sense if we imagine that the skilled person for enablement is the same fictitious legal person as the skilled person who assesses obviousness. In my telling, however (i.e., where the skilled person of §112 is a collection of real persons), it would make more sense for this also to be a question of fact.

                I think that this just means that the CAFC got it wrong when it made WD a fact question and enablement a law question. I think that all aspects of §112 should be fact questions. Even I, however, am not so obtuse as to confuse what I think the law should be with what it actually is.

                In other words, the story I told above about the skilled person of §112 is not entirely wrong, but neither is it entirely correct as a statement of what the law is.

                1. Your (3) is a backtrack from your earlier statements and accords with my rebuttal to those statements.

                  Thank you.

    2. 12.2

      Greg (and to a lesser extent MaxDrei — lesser because I am more interested in the US legalities),

      Can you explicate this (supposed) difference? I am not sure that there is anything to support such a difference in view of the Congressional record.

      1. 12.2.1

        And then there is the ordinary person involved in considerations whether a prior art document the basis of a novelty attack is “enabling”. Would that be the same ordinary person as the one in Section 112?

        As to the English decisions, they zoom in on the inherent difference between the enquiry as to what was obvious and the enquiry whether the teaching in the patent is sufficient to enable the claimed subject matter. For example, the claimed subject matter might be a roasting step applied to cocoa beans, unknown in the cocoa bean world (and not obvious there) but known in the coffee bean roasting community. The patent includes directions to read up in the coffee roasting arts, giving specific written sources within it. The ordinary person seeking to enable the claim would therefore be deemed to know the coffee roasting art, but the Section 103 ordinary person presumably not.

        anon, you and I have discussed without end the differences perceived between the POSITA under the US statute and the one under the EPC. Let’s not go through that loop all over again.

        1. 12.2.1.1

          Let’s.

          Especially with this new perceived difference in the US 103/112 sense.

          What is the “equivalent” EPO “103/112” variation?

          Given the EPO lack of consistency, I am curious if any “equivalent” “112” is one of:
          a) consistent with “102”
          b) consistent with the different “103,” OR
          c) something else entirely from either of the “102” or “103” views.

          I recognize the Sovereign choice to be inconsistent, and am curious as to how inconsistent this facet may be.

          1. 12.2.1.1.1

            MaxDrei (not that surprisingly) got sidetracked on the 103 side alone, and has not advanced to the 112 side of the issue.

            Still would like to see how (and which of the three options I listed) does the legal notion of the juristic person FOR the “EPO equivalent” of 112 (be it enablement, possession, or teaching) flesh out.

            1. 12.2.1.1.1.1

              …the interesting additions to this point for an EPO perspective remain lacking.

              Any other EPO aficionado out there care to give it a shot?

        2. 12.2.1.2

          The ordinary person seeking to enable the claim would therefore be deemed to know the coffee roasting art, but the Section 103 ordinary person presumably not.

          Not so for the US 103, MaxDrei – see KSR.

          This is one of those things that here those espousing the power of the Supreme Court to legislate from the bench often overlook: there are ramifications that ripple out from such rewritings. KSR being an excellent example.

          1. 12.2.1.2.1

            I called up KSR in Wikipedia and there found this:

            “it remains necessary to identify the reason why a person of ordinary skill in the art would have combined the prior art elements in the manner claimed.”

            from the USPTO guidance to its Examiners. It would not be out of place in the EPO Guidelines for Examination.

            1. 12.2.1.2.1.1

              Calling up KSR in Wikipedia (nor choosing the quote as you have done) does not fill me with confidence that you understand what you quote – or the relation of the case to the discussion here per my comment.

              Do you understand how the KSR case leans against the point that you proffered at post 12.2.1?

              If anything, this reply of yours only decreases my tendency to give credence to your posts.

              1. 12.2.1.2.1.1.1

                How about this then, on the post-KSR landscape, again (conveniently) from Wikipedia:

                “Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;”

                At 12.2.1.2 you write “Not so”. I doubt that. The landscape is, I suspect, a bit more subtle than that.

                1. And yet again, MaxDrei, these posts of yours do NOT support your initial post 12.2.1.

                  Quite in fact, they support my counter at 12.2.1.2.

                  That you seem to be having immense difficulty in seeing this is why you have no credibility in our discussions.

    3. 12.3

      PSIT is dangerous because it drops the “ordinary” and seems to refer to a rare expert rather than the general rabble.

      Rather we need to emphasize that the phrase refers to the run of the mill: Person having merely ordinary skill in the art.

      1. 12.3.1

        “Being skilled” begs</b the question as to “skilled to what level?”

        There is a mirage here that 112 needs no level (and is some type of binary “yes/no”) — but at the same time “nebulizes” with “real person” when even the level of “real person” is left out of the consideration.

        Dangerous indeed.

  6. 11

    I think they are all fine as long as we pick one. Plus the bigger problem perhaps is the different terms used in 103 and 112.

    1. 11.1

      Interesting catch – does the (slight) difference carry a legal difference?

      1. 11.1.1

        The spec disclosure adequacy for adequate 112 enablement of all claim elements for valid patenting is not at all the same as specification content adequacy for 103 reference-combination usage, a good reason why they use different terms.

        1. 11.1.1.1

          Bald statements like that Paul simply do not impress.

        2. 11.1.1.2

          How so Paul? Seems like if there is a difference between those two terms as you suggest, then this should inform us in how we should refer to the two.

          1. 11.1.1.2.1

            Greg at least provided an attempt at arguing a basis for distinction.

            Paul? Well, I will “politely” state that if something cogent and substantive is provided, I wil be pleasantly surprised.

  7. 10

    I dislike all the acronyms. I much prefer “ordinary artisan,” which is short, descriptive, and avoids the entire acronym debate!

    1. 10.1

      Sorry Tom, but “ordinary artisan” does not convey the fact that it is a juristic person and not a real person that the “acronym” represents.

      You have to keep it RILS.

    2. 10.2

      I agree. I just say “artisan” in PTO submissions. Everyone reading my stuff knows just what I mean, and I prefer they spend their mental energy on my discussion of why my claims are patentable, not calling to mind every aspect of “person of ordinary skill in the art” and other jargon. For appeals, I might make it clear that I am using “artisan” to avoid the clumsiness and lack of clarity caused by PHOSITA.

  8. 9

    Meh. I’m personally in favor of:

    PHONY: Person Having Ordinary Notions; Yawn

    … and wouldn’t this fit in really well with so many folks arguments?

  9. 8

    ‘Pho’ suggests an alphabet soup to me, so right on target.

    1. 8.1

      I think there is a Vietnamese Restaurant nearby that serves something called Pho.

  10. 7

    I think this is an important debate.

    1. 7.1

      We need to have “squirrels” somewhere in there…

      (Maybe even blind ones)

  11. 6

    The term is meant to distinguish those of inventive skill from those of ordinary skill. But, it can be misinterpreted to mean a person of skill.

    Therefore, I would prefer PHMOSITA or POMOSITA.

    PHMOSITA – Person having merely ordinary skill in the art
    POMOSITA – Person of merely ordinary skill in the art.

  12. 5

    POSITA could also be an imaginary person “of” ordinary skill in the art [rather than “having”], just eliminating one O to avoid POOSITA.

      1. 5.1.1

        Ha!

        BTW, Dennis, any chance this blog web site can get a favicon.ico? (It helps managing browser tabs and saved links.)

  13. 4

    I had to check my calendar while reading this.

  14. 3

    ..or instead of ordinary skill, we aim for a required innovation level, with:

    RILS-JNAP

    Required Innovation Level Set by Juristic Not Real Person.

    Keep it RILS (and not Real).

  15. 2

    Maybe “Ordinary Skill-Haver In The Art”?

  16. 1

    Did anyone ever call the Trademark Trial and Appeal Board the “T-tab”?

    1. 1.1

      “T-tab” is a frequent oral expression for the TTAB, but I don’t recall seeing it written that way?
      Also just plain “Board” is often used just for the PTAB, which gets a lot more business, especially after the formerly separate Interference board was merged into it.

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