How is the level of ordinary skill in the art determined for obviousness analysis?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Determining the level of ordinary skill in the art is crucial for obviousness analysis. The MPEP provides guidance on factors that may be considered:

• Type of problems encountered in the art
• Prior art solutions to those problems
• Rapidity with which innovations are made
• Sophistication of the technology
• Educational level of active workers in the field

The MPEP states: “A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” This emphasizes that examiners should consider the reasonable inferences and creative steps that a person of ordinary skill in the art would employ.

Additionally, examiners may rely on their own technical expertise to describe the knowledge and skills of a person of ordinary skill in the art. The Federal Circuit has recognized that examiners and administrative patent judges are “persons of scientific competence in the fields in which they work.”