Patent attorneys and patent examiners often refer to “a person skilled in the art.” But who is this mysterious figure lurking in the background, influencing, for example, the examiner’s view of an invention’s patentability or the sufficiency of its description? What special skills does this professional possess? In this article, we take a closer look at the concept of the person skilled in the art, particularly through the definitions provided by the European Patent Office.
The professional knows and experiments—but not always alone
As a starting point, the person skilled in the art is assumed to be a competent practitioner in the relevant technical field. They have an average level of knowledge and ability and are aware of what was common general knowledge in the field at any given time.
The skilled person is also curious and willing to experiment. They have access to the full body of prior art documentation, such as patent publications and textbooks. In addition, they can make use of routine working methods and experimental techniques available in the field.
The skilled person is active; they are involved in the ongoing development of their technical area. Besides being active, they are also inquisitive; they are expected to look for solutions in neighboring technologies and general technical fields, and even in distant fields if prompted to do so.
In some cases, the person skilled in the art is not a single individual but a team—for example, a research or production group working together on a common problem. Nor does the skilled person dwell endlessly on an unsolvable problem: they know when to “phone a friend” and ask for help.
The professional can read and understand
The skilled person builds their general knowledge from many sources. A single publication may not necessarily constitute common general knowledge, unless the field is very new and little else has been written.
When reading a patent application, the skilled person can also read between the lines. If something is not explicitly stated in the text, it is assumed to be obvious to them. However, if the inventiveness of the application hinges on such an unstated feature, the applicant is in trouble: the application cannot later be supplemented with that feature.
The skilled person recognizes terms if they have an established technical definition in the field. Buzzwords, on the other hand, do not impress them—at least not when they are trying to understand an invention.
If the skilled person is handed a well-written patent publication, they can carry out the invention on the basis of the disclosure. They also understand flowcharts prepared for computer programs, even if they do not themselves have programming skills.
The professional’s precision depends on the perspective
The skilled person is not overly exact when it comes to numerical values, because they understand that measurement errors may affect accuracy. However, they are strict about one thing: all the essential features of an invention must be disclosed in the patent application. Otherwise, they cannot put the invention into practice. In some cases, however, the skilled person does recognize how to measure unusual properties.
If the skilled person encounters a technical problem and solves it in an obvious way—rather than in the way described in the patent application—the applicant may prepare for the patent being granted.
Thus, when a patent examiner picks up an application and begins to assess the patentability of the invention disclosed, they do so through the eyes of the person skilled in the art (and hardly through rose-colored glasses).
