Despite his many different faces, the “person skilled in the art” (PSITA), also called “the person having ordinary skill in the art” or PHOSITA, is a famous character in the field of patents.
PSITA is a legal concept found in many patent laws, which is used in various aspects of patent examinations worldwide. In most jurisdictions, it is a hypothetical person who is presumed to be a skilled practitioner in a technical field with average knowledge and ability and who is aware of what is common general knowledge in the art at a given relevant date.
The main goal of this legal fiction is to provide a standard for determining whether a patent application satisfies the patentability requirements, i.e. an inventive step and sufficient disclosure. This concept is fundamental in patent law since it prohibits the patentability of trivial inventions, preserves the patentability of worthy ones, and guarantees the principle of the patent system to impart knowledge.
The level of knowledge and aptitude of PSITA varies from one field to another and must be defined on a case-by-case basis. Depending on whether you are a patentee or an opponent to a patent, it is tempting to consider PSITA as a newbie or an expert. However, even if the standard skills required for the PSITA is different across jurisdictions, it is commonly admitted that PSITA is familiar with the “ordinary” technical knowledge in the relevant art, does not know “all” the prior art (even if he has access to it) and, above all, he would not engage in creative thinking.
Moreover, not only does PSITA have many faces but also can be plural. As technologies have evolved, the average number of inventors per patent has increased in the last decades. The ordinary inventor today is a joint inventor who invents as part of a team. Accordingly, PSITA can also be defined as a group of persons, such as a research or production team, rather than a single person.
Interestingly, the concept of PSITA as a standard has never stopped evolving but it could become much harder to define it in the next few years because of the use of Artificial Intelligence (AI).
AI systems have become more prevalent and more advanced. Their use offers unlimited possibilities to inventors as processing incredible amounts of data or carrying out large-scale simulations can be done very quickly. Consequently, it will be central for the Courts to determine whether PSITA would have access to these powerful tools and would have used them in the same way to solve technical problems.
Undoubtedly, PSITA is a person of his time and is still evolving.
Eric Bilhère – European and French Patent Attorney