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A Legal Empirical Study of the PHOSITA in the Patent Law
Patent;PHOSITA;Objective Standard;Hypothetical Person;Empirical Study;TIPO;IP Court
|Issue Date: ||2017-11-07 14:54:25 (UTC+8)|
The PHOSITA (person having ordinary skill in the art) is an important concept in the current Patent Law. For example, PHOSITA is the objective standard for determining patent non-obviousness. Theoretically, when the patent examiners or judges (hereinafter ＂the Decision Makers＂) examine the non-obviousness of a patent, they need to determine the technology level of the PHOSITA first. However, a review of our courts' decisions shows that our courts have never identified the PHOSITA's skill/experience level. Nor have they explained how to judge the non-obviousness in the perspective of the PHOSITA during the course of the decision-making. Consequently, it raises the question of whether the Decision Makers determine the patent non-obviousness subjectively. The legal empirical study in this article includes a quantitative study and a qualitative study. A questionnaire has been used in the quantitative study to interview the attorneys at law and patent attorneys, and the conclusions showed 80% of interviewees assert that identifying the PHOSITA is a prerequisite of determining patent non-obviousness. However, only one fourth of the interviewees had such experience in the IP Court. In addition, more than one half of the interviewees think that the Decision Makers see themselves as the PHOSITA. In regard to the qualitative study, in-deep interviews have been conducted toward 20 Decision Makers and attorneys. The result confirms that most Decision Makers don't determine the PHOSITA. Rather, they see themselves as the PHOSITA when they determine the patent non-obviousness. The conclusions of the qualitative study are as follows: (1) the PHOSITA has ordinary skill in the art but with full knowledge of prior art; (2) the determination of PHOSITA should consider the technical field of the patent, the educational background and work experience of the inventor, and the technical standard of ordinary workers in the technical field; (3) the Decision Makers should lower their standards to hypothesize PHOSITA in the fields that they have technical expertise in; for the technologies they are not familiar with, the Decision Makers should enhance their standards by conducting researches or consulting experts. The overall conclusions and suggestions of this article are as follows: (1) the original presumption is confirmed-most Decision Makers don't determine the level of PHOSITA; (2) in regard to non-obviousness examination, the process of examining non-obviousness with determining the PHOSITA should be proposed; (3) in respect of law amendment, the law regarding the PHOSITA in Taiwan's Patent Law should be amended to a ＂person having ordinary skill in the art＂; (4) for TIPO, it is recommended to recruit the patent examiners with industrial experiences; (5) as for IP Court, the numbers of technical officers in the IP Court should be expanded and it is also recommended to recruit the technical examiners with industrial experiences.
|Relation: ||政大法學評論, 146, 52-126|
|Data Type: ||article|
|DOI 連結: ||http://dx.doi.org/10.3966/102398202016090146002|
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
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