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In patent law, POSITA “is a hypothetical person who is presumed to have known the specific technology disclosed in the relevant art at the time of the invention.” Without being a genius, this fictitious individual is thought to have average talents and understanding in a particular technological sector. A patent on an innovation that would have been obvious to a “person of ordinary skill in the art” cannot be granted. Patents are said to be addressed to and viewed through the eyes of this person. The person primarily serves as a resource for determining whether or not an invention is non-obvious (under US patent law i.e. USC 103) or contains an innovative step, or at the very least evaluating whether or not it does (in European patent laws). The innovation is not patentable if it would have been obvious for this hypothetical person to design something based on prior art.

The POSITA (often abbreviated “POSA” or “PHOSITA”) standard is important throughout the life of a patent; it not only determines whether a patent may be awarded, but it also specifies the scope of claims during the patent term and may also influences the result of the infringement and may even lead to the invalidation of the patent. POSITA checks for the TSM (Teaching, suggestion and motivation) for the technology described in particular patent.

The POSITA standard originated from the Supreme Court’s decision in “Hotchkiss v. Greenwood,” in which the court declared a doorknob improvement unpatentable, stating that “unless more ingenuity and skill were required than were possessed by an ordinary mechanic acquainted with the business,” There was a lack of the level of competence and originality that are required components of any work, hence the enhancement was not patentable.

In Beloit Canada Ltd. v. Valmet Oy, the technician is characterized as a perfect example of deduction and skill. Given the state of the art and common general knowledge at the time of invention, the challenge is whether this hypothetical individual could have arrived at the solution disclosed by the patent without difficulty.

 

KSR Int’l Co. v. Teleflex Inc.

Teleflex applied for a patent infringement litigation against KSR International, asserting that one of KSR’s products infringes Teleflex’s patent for interconnecting an adjustable vehicle control pedal to an electronic throttle control. According to KSR, the claim was not patentable since the combination of the two elements was obvious. The district court decided in KSR’s favour, but the Federal Circuit Court of Appeals overturned the decision in January 2005.

The statutorily prescribed standard for determining obviousness is simply “POSITA.” It’s critical to correctly define the POSITA and then apply those criteria consistently when determining obviousness. It’s also critical that the POSITA be only used for its statutorily mandated function of evaluating obviousness, not for additional purposes like deciding enablement.