IP and Innovation Law
Patent law shares with tort law the presence of an artificial character that structures judicial decision-making. Much like the reasonable person in tort law, the “person having ordinary skill in the art” (or PHOSITA) frames judicial inquiries into such central patent law questions as whether an invention is obvious, set out in sufficient detail, or infringed by a competitor. The PHOSITA’s perspective is considered so self-evident and foundational to the field that virtually every patent textbook and judicial opinion emphasizes that doctrinal outcomes are tied to the technical perspective of the PHOSITA, not that of the judge or an ordinary observer. Despite the field’s acknowledged reliance on this artificial character, and the Supreme Court’s reaffirmation of its importance, scholars and jurists have raised doubts as to whether the PHOSITA in fact plays an outcome-determinative role in the resolution of patent disputes.
In this Article, we conduct the first comprehensive empirical study of the role of the PHOSITA in patent litigation. Through close readings of seven hundred trial and appellate court opinions as well as automated textual analysis of over seven thousand cases, we evaluate the way lower courts create their artificial PHOSITA, the construct’s impact on legal decision-making, and the influence of Supreme Court interventions on lower court outcomes. We find that the PHOSITA plays a surprisingly small role in judicial decision-making, even in the aftermath of Supreme Court decisions that emphasize its centrality.
View full article here: https://ilr.law.uiowa.edu/print/volume-108-issue-1/the-ghost-in-the-patent-system-an-empirical-study-of-patent-laws-elusive-skilled-artisan.
Co-authors: Laura Pedraza-Fariña (Northwestern Pritzker School of Law) and Ryan Whalen.
Published in Iowa Law Review, Volume 108, Issue 1, The University of Iowa, pp. 247-302 (online version)