Judge Rich made an important modification to his“inventor…working in his shop” metaphor in Kimberly-Clark v. Johnson & Johnson, 745 F.2d 1437, 223 USPQ 603 (Fed. Cir. 1984), by making clear that it is the hypothetical person of ordinary skill, not the inventor, that is in the shop. He proclaimed (id. at 1454): “We hereby declare the presumption that the inventor has knowledge of all material prior art to be dead.” By substituting the person or ordinary skill, Judge Rich conformed his Winslow metaphor to the language of ’103.
於1984年以前，判斷可專利性的標準是以“發明人”為準，而不是以“具有通常技能者”為準。在1984年的判決Kimberly-Clark v. Johnson & Johnson以及Winslow中，法官Rich清楚地宣布，以“具有通常技能者”替代“發明人”。
Level of Ordinary Skill
The approach in Winslow shows one construct for hypothesizing the person of ordinary skill in the art and the challenge facing that person. Is it fair to charge the aspiring patentee with knowledge of all the analogous art by endowing the artisan of ordinary skill with omniscience? Is it also fair to assume that the hypothetical artisan was focused on solving the particular problem on which the inventor was dealing? The presumption does simplify the obviousness analysis by putting all inventors in the same position so that duplicative invention is not permitted. In addition, perhaps the presumption is a fair trade-off with the presumption that the hypothetical artisan has only ordinary skill. Judge Hand recognized perhaps another trade-off:
在Winslow的學理方法中，顯示了“具有通常技能者”之虛擬人物的構想及他所面臨的挑戰。藉由使“具有通常技能者”為全知者，來課予申請人應知道所有類似領域之知識的負擔，是公平的嗎？藉由假定這個虛擬人物僅需具有通常技能，也許，這樣的假設會是一種公平的權衡（trade-ff）。然而，法官Hand還指出另外一種權衡。
Perhaps it would be desirable that an inventor should not be charged with acquaintance with all that the patent offices of this and every other country contain, and with all that has ever been publicly sold or used in the United States; although in that event it would be an inevitable corollary that infringements should be limited to plagiarisms. With such considerations we have nothing to do; as the law stands, the inventor must accept the position of a mythically omniscient worker in his chosen field. As the arts proliferate with prodigious fecundity, his lot is an increasingly hard one. (Merit Mfg. Co. v. Hero Mfg. Co., 185 F.2d 350, 352, 87 USPQ 289, 291 (2d Cir. 1950).)在Environmental Designs, Ltd. V. Union Oil Co., 713 F.2d 693, 696, 218 USPQ 865, 868 (Fed. Cir. 1983)的判決中，法官提供了決定具有通常技能者之水平的六個因素：
也許最好的情況是，不應該課予發明人應熟悉本專利局及其他國家專利局所累積內容以及應熟悉在美國公開販賣或使用之技術的負擔，即使在此情況下所造成的自然結果會是，侵權僅能限於剽竊（難以舉證）。認知到此考量後，我們無能為力，在法律的角度，只能要求發明人必須接受在他所選擇的領域中有著一虛構的全知者的角色。隨著技藝以巨大繁殖能力急速地增殖，他個人的運也愈來愈艱難。
(1) the educational level of the inventor若比對MPEP 2141.03 ，可以發現缺少了“ the educational level of the inventor”的判斷因素。應該是1983年後的判決中，因應以“具有通常技能者”替代“發明人”的構想，而將它刪除了。
(2) the type of problems encountered in the art
(3) the prior solutions to those problems
(4) the rapidity with which inventions are made
(5) the sophistication of the technology
(6) the educational level of workers active in the field
MPEP 2141.03 Level of Ordinary Skill in the Art
The person of ordinary skill in the art is a hypothetical person who is presumed to have known the relevant art at the time of the invention. Factors that may be considered in determining the level of ordinary skill in the art may include: (A) “type of problems encountered in the art;” (B) “prior art solutions to those problems;” (C) “rapidity with which innovations are made;” (D) “sophistication of the technology; and” (E) “educational level of active workers in the field. In a given case, every factor may not be present, and one or more factors may predominate.” In re GPAC, 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995); Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962, 1 USPQ2d 1196, 1201 (Fed. Cir. 1986 ); Environmental Designs, Ltd. V. Union Oil Co., 713 F.2d 693, 696, 218 USPQ 865, 868 (Fed. Cir. 1983).
112及103段落情況下的虛擬人物是相同的嗎？
The Person Skilled in the Art
Is the skilled artisan under section 112 the same hypothetical person as the artisan of ordinary skill under section 103? In some ways he is, and in some he is not. First, under section 103 the pertinent field of art is defined by the problem to be solved, and the courts look for a person skilled in that field. But does that mean one field of technology? Not necessarily. Remember that we are talking about a hypothetical person, who may not actually exist. One district court, in a section 103 context, found the pertinent fields to be several, all of which the hypothetical person either had familiarity with, or would be expected to consult with, someone who did. Likewise, under section 112, the Court of Customs and Patent Appeals has suggested that an invention directed to more than one field may be enabled by looking to the knowledge of multiple specialists. For example, an invention that uses a computer program to operate a structure in a novel way may be enabled by the knowledge of both a computer programmer and an engineer in the appropriate field. See In re Naquin, 398 F.2d 863, 158 USPQ 317 (CCPA 1968). Second, under section 103, the artisan of ordinary skill is presumed to know about all of the relevant prior art in the pertinent field. That presumption is driven by the policy of imposing an absolute duty to research all of the prior art so as to avoid duplicative inventive activity and overlapping patents. In contrast, the policy behind section 112 is to make the invention available to the public without requiring a detailed search. See 3 Donald S. Chisum, Chisum on Patents § 7.03[2], at 7-28 to 7-29. Thus, in Webster Loom, the Court endowed the artisan under section 112 with knowledge of “[t]hat which is common and well known.” Hence, the omniscience of the hypothetical person under section 103 does not carry over totally to section 112.
在某些情況下是，在某些情況下不是。
- 首先，在段落103下，所屬領域是欲解決的問題，而且可以為複數個領域。相同地，在段落112下，一個發明也可以被導向多個領域，並且根據多種類專家的知識也致能多數的專家。
- 第二，在段落103下，具有通常技能者被假設成知道所有類似領域之知識。這樣的假設是政策導向，藉由課予申請人應檢索所有習知技術的負擔，避免相同的發明活動及重疊的發明。相反地，在段落112下，是要讓發明在不需要仔細檢索的情況下能夠公開於公眾。因此，在Webster Loom中，法院賦予段落112下的工匠具有common and well known的知識。
在102下也應該考慮到虛擬人物的技能水平，因為引用技術必需是known by persons of ordinary skill，他的技能水平是普通的而他的知識水平也是全知的。此外，在書面記載要件中，針對沈默的部分，可以主張原說明書中已固有地、暗示地記載。而要作為102的引用文獻，也可以利用其他文獻（全知的）舉證該引用文獻已固有地記載沈默的部分。判斷標準也是以persons of ordinary skill為準。
在段落103下，分析習知技術時，虛擬人物除了全知外，也被賦予具有通常的創造能力。
2131 Anticipation — Application of 35 U.S.C. 102
Therefore, one of ordinary skill in the art would have known that “commercial blood bags” meant bags containing DEHP. The claims were thus held to be anticipated.
“To serve as an anticipation when the reference is silent about the asserted inherent characteristic, such gap in the reference may be filled with recourse to extrinsic evidence. Such evidence must make clear that the missing descriptive matter is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill.”
(“how one of ordinary skill in the art would understand the relative size of a genus or species in a particular technology is of critical importance”)
Patentee described claimed temperature range as “critical” to enable the process to operate effectively, and showed that one of ordinary skill would have expected the synthesis process to operate differently outside the claimed range.
MPEP 2141.03
“A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007).
比較
Wiki Person having ordinary skill in the art
Quite similar to the logic of "reasonable person" used in the common law of torts as a test of negligence, the PHOSITA is a hypothetical individual, neither a genius nor a layperson, created in the mind of a patent examiner or the jury to see if a claimed invention is too obvious to be patented.
類似於侵權的普通法中的“合理的人”作為疏忽測試。
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