What is the “person of ordinary skill in the art” in obviousness determinations?
The “person of ordinary skill in the art” is a hypothetical figure used in obviousness determinations under 35 U.S.C. 103. The MPEP explains:
“To reach a proper determination under 35 U.S.C. 103, the examiner must step backward in time and into the shoes worn by the hypothetical ‘person of ordinary skill in the art’.”
This perspective is crucial because:
- It helps assess whether the invention would have been obvious at the relevant time
- It provides a standard for evaluating the prior art and the claimed invention
- It helps avoid hindsight bias by focusing on what was known at the time of invention
The relevant time is “before the effective filing date of the claimed invention” for AIA applications or “at the time the invention was made” for pre-AIA applications.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2142 - Legal Concept Of Prima Facie Obviousness,
Patent Law,
Patent Procedure