Just Who Is the Person Having Ordinary Skill in the Art? Patent Law\u27s Mysterious Personage

Various patent validity and infringement questions are decided against the standard of the person having ordinary skill in the art (Phosita). For example, under 35 U.S.C. § 103(a), an invention must be nonobvious to one of ordinary skill in the art to be granted a patent. In this context, the Federal Circuit has set out six factors for measuring the level of skill of Phosita, yet the court has provided remarkably little guidance in their use and their relationship to nonobviousness. This situation has led to confusion and difficulties among courts trying to assess Phosita\u27s skill. This Comment argues that the current factors must be abandoned or modified, and suggests new factors which more accurately reflect the underlying purpose of the Phosita standard