PHOSITAPerson Having Ordinary Skill in the Art (patent law)
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But other Federal Circuit decisions have produced the same result, sometimes by concluding that if an invention was obvious to try and the PHOSITA reasonably expected it to succeed, succeeding could not be "unexpected." Thus, in Novo Nordisk A/S v.
determination of who is the PHOSITA in every case, based on the
(79) They are: (1) the amount of direction or guidance presented in the disclosure; (2) the existence of working examples; (3) the nature of the invention; (4) the predictability or unpredictability of the art; (5) the PHOSITA's level of skill; (6) the state of the prior art (preexisting knowledge and technology already available to the public); (80) (7) the scope of the claims; (81) and, (8) the quantity of experimentation necessary to practice the claimed invention.
The PHOSITA is assumed, therefore, to be able to search every library in
is because a PHOSITA must often use trial and error--and perhaps engage
(41) Identifying the relevant legal standard, the court stated that "[a] claim is indefinite only when it is 'not amenable to construction' or 'insolubly ambiguous.'" (42) The court held that the claim did "not suffer from indefiniteness" because a PHOSITA would believe that the claim was sufficiently bounded.
The standard is straightforward: if a PHOSITA can identify the
(43) This means that as of the reinventor's filing date, a PHOSITA could have combined the teachings of the expired patent with preexisting knowledge in the field to make X without undue experimentation.
She can only claim that which the PHOSITA objectively recognized would be in the inventor's possession.
The PHOSITA who succeeds in developing beneficial technology in the face of such an impediment could be said to have a non-obvious invention.
In determining whether an invention is obvious, courts look at secondary considerations, such as "commercial success, long felt but unmet needs, [and] failure of others," that can shed light on whether the PHOSITA would consider the invention obvious.