Legal Definition Posita

A person with ordinary competence in the field is a legal fiction first codified in the Patents Act of 1952. [6] PHOSITA is a test of «evidence», which is one of the largest grey areas in patent law. In stark contrast, the PHOSITA of §103 is an imaginary person, a strictly hypothetical legal construction. PHOSITA is the hypothetical construction by which we define all public knowledge contained in the state of the art. In addition, PHOSITA can be described as ordinary capabilities, but should not be innovative, but only follows conventional wisdom. However, there is a limit to the knowledge attributable to PHOSITA. 1 Definition found for this term. Definitions are listed in the order in which the source books were published (last first). In practice, this legal fiction is a series of legal fictions that have evolved over time and can be interpreted differently for different purposes. This legal fiction essentially reflects the need to consider each invention in the context of the technical field to which it belongs. By: Gordon K.

Hill and A. John (Jack) Pate There is still a lot of confusion in the application of patent law, which is displayed by judges, lawyers and academics. This confusion is due to the fusion of a completely hypothetical legal construct with a real human being. A POSITA «is a hypothetical person who is believed to have known the relevant technique at the time of invention.» M.P.E.P. 2141(II)(C). In practice, this means that a POSITA knows everything (and everything) that is in a prior art document. This basic definition is where knowledge of a POSITA can be objectively used to demonstrate the extent of POTA knowledge. Since this knowledge is gathered through careful examination of prior art, POSITA begins to prove to be much more than hypothetical, and a patent attorney can develop appropriate and convincing arguments that revolve around POTA. A person with ordinary skills in the field (abbreviated PHOSITA), a person with a qualified (ordinary) person (POSITA or PSITA), a skilled person, an expert recipient or simply a professional is a legal fiction found in many patent laws around the world.

It is believed that this hypothetical person has the normal skills and knowledge in a particular technical field (an «art») without being a genius. The person serves primarily as a reference to determine or at least assess whether an invention is not obvious or not (in US patent law) or involves an inventive step or not (in European patent law). If it would have been obvious for that fictitious person to develop the invention on the basis of prior art, then the particular invention is considered unpatentable. The Supreme Court explains very well how important it is not to confuse or confuse PHOSITA with the patent owner or inventor. In KSR, the Supreme Court stated: See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 127 S.Ct. 1727, 1740, 1742 (2007). The EPC also refers to the skilled person in Article 83 EPC, according to which `[t]he European patent application must disclose the invention in a clear and complete manner so that it can be carried out by a person skilled in the art`.

The patent specification shall contain a written description of the invention and of the manner and manner of its manufacture and use, in a complete, clear, concise and precise form enabling any person skilled in the art to which it belongs or with which he is most closely connected to produce and use it. and defines the best way in which the inventor or co-inventor intends to carry out the invention. [8] See Patents and the Federal Circuit, 10th edition, p. 276. [1] The tenth and eleventh editions of Patents and the Federal Circuit cite the Invitrogen case cited above in support. In the twelfth and thirteenth editions of Patents and the Federal Circuit, Promega Corp. v. Life Technologies Corp., 773 F.3d 1338 (Fed.

Cir. 2014) is also cited in support of this assertion. Although the Promega case deals with empowerment, it does not refer to PHOSITA in the context of empowerment. The applicable case law therefore does not suggest that Article 112 requires the provision of a PHOSITA. In addition, it is inappropriate to attribute to PHOSITA the knowledge and skills required to determine capability. the technician who is trained in the field but has no trace of inventiveness or imagination; a model of deduction and skill, completely devoid of intuition; A triumph of the left hemisphere over the right hemisphere. The question arises whether, given the state of the art and the knowledge common at the time of the claimed invention, this mythical creature (the Clapham omnibus man of patent law) would have arrived directly and without difficulty at the solution provided by the patent. [2] A related term is «entrepreneur», who is also a fictitious person.

It is used at the EPO to assess the inventive step of an invention with both technical and non-technical elements. The entrepreneur «represents an abstraction or abbreviation for a separation of commercial and technical considerations.» [5] The examination of jurisdiction in § 112 differs from the examination of evidence in § 103. The «expert» in § 112 and the «expert» in § 103 are separate and distinct entities. This argument was found convincing by the PTAB and the initiation of the inter partes review («IPR») was rejected. It would not have been easy to combine the references to arrive at the claimed invention. We have successfully argued that if one really thinks about what a POSITA needs to know on the basis of this prior art and puts oneself in POTA`s position, it is clear that one would not combine the references in question to arrive at the claimed invention. In determining whether the subject-matter of a claim is obvious, neither the particular statement of reasons nor the stated purpose of the patent proprietor is relevant. The objective scope of the claim is decisive. If the claim extends to the obvious, it is invalid according to § 103. One way to prove that the subject-matter of a patent is obvious is to establish that there was a problem known at the time of invention for which there was an obvious solution covered by the claims. This was applied to the facts before the Court as follows: the correct question was whether a pedal designer with ordinary skills, who, given the many needs arising from the evolution in the field of effort, would have seen an advantage in upgrading Asano with a sensor.

Too often, patent examiners and patent practitioners pay lip service to the importance of the «person with ordinary technical skills» («POSITA») when discussing issues such as the rejection of evidence, the importance of claims concepts in litigation, and many other critical patent law issues. This «person of ordinary general culture» is a hypothetical person around whom much of patent law revolves. Despite the importance of POSITA, arguments about what a POSITA knows or does not know are often conclusive and weak. While it is difficult to follow in the footsteps of this hypothetical individual (since, among other things, he does not exist), it is a crucial first step when it comes to overcoming rejections when granting a patent and when presenting arguments that support a client`s interests in litigation or before the U.S. Patent Trial and Appeal Board («PTAB»). A patent cannot be obtained by invention. if the differences between the subject matter to be patented and the prior art are so great that the subject-matter as a whole would have been obvious at the time of invention to a person with ordinary general knowledge in the field to which that subject-matter belongs.