Re: [Patents] "person skilled in the art"

[Nari Lee <narlee@utu.fi>]

Hello  
I have been wondering about who this person skilled in the art is.

I came across the following article
(Burk, Dan L. and Lemley, Mark A., "Is Patent Law Technology-Specific?" . 
Berkeley Tech. Law Journal, Vol. 17, p. 1155, 2002 
http://ssrn.com/abstract=349761) 
where American law Professors Lemley and Burk stated that 
"it is something of a judicial doppelganger, embodying a legal standard for
patentability rather than the actual capability of any individual or group
of individuals." (at page 41).

It has many citation of US case laws where this "person" has been used to mean
so different in different technological contexts.I hope this helps?
Although, I quite agree with the comment that it is useless beacause  
> I don't think you can use the term for much apart from examining 
> non-obviousness and pretending to be making strict patent laws (by playing 
> with the double meaning: one in ordinary talk and the other in the patent 
> system).


Lee
----- Original Message -----
From: Erik Josefsson <ehj@cleosan.com>
Date: Thursday, August 5, 2004 3:54 am
Subject: Re: [Patents] "person skilled in the art"

> Hartmut Pilch wrote:
> >>I ran into some texts about the "person skilled in the art", 
> >>"fackmannen" in swedish.
> >>
> >>Can you challange in court that the examination was not done by 
> a 
> >>"person skilled in the art"?
> >>
> >>Is the examiner at the patent office a "person skilled in the 
> art" by 
> >>definition?
> > 
> > The "person skilled in the art" is a fiction used for examining 
> > non-obviousness.  It is an uncreative person who knows all the 
> prior art.
> 
> I understand. That means you challange the fiction ;-)
> 
> I found that EPO can consider a team of programmers "a person 
> skilled in 
> the art":
> 
>    "For the software implementation of an information system, 
> normally    a software project team is responsible, typically 
> consisting of
>    programmers. The Board thus considers appropriate to define, 
> in the
>    present case, the relevant "person skilled in the art" within the
>    meaning of Article 56 EPC as such a software project team."
> 
>    http://legal.european-patent-office.org/dg3/pdf/t030172eu1.pdf
> 
> > I don't think you can use the term for much apart from examining 
> > non-obviousness and pretending to be making strict patent laws 
> (by playing 
> > with the double meaning: one in ordinary talk and the other in 
> the patent 
> > system).
> 
> Indeed.
> 
> //Erik
> 
>