by Dennis Crouch
In this post, I use the Federal Circuit's recent decision in Sage Products, LLC v. Stewart, Appeal No. 23-1603 (Fed. Cir. April 15, 2025) to delve into the increasingly fictional construct at the center of patent law: the Person Having Ordinary Skill in the Art (PHOSITA). In our stories, PHOSITA is typically the antagonist, attempting to undermine our hero, the inventor. PHOSITA didn't invent, but now says that he would have done so if only he were a real boy. And, the ever-expanding knowledge base imputed to PHOSITA helps justify that claim--while naturally raising concerns about the system's fairness, predictability, and effectiveness.
In this case involving sterilized chlorhexidine products, the court imputed detailed knowledge of British regulatory standards to a U.S.-based innovator—another example of how "ordinary skill" has become anything but ordinary. This decision continues a troubling evolution in which courts attribute unrealistic knowledge and capabilities to the hypothetical PHOSITA, creating an ever-widening gap between this legal fiction and the actual capabilities of real-world mechanics and artisans.
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