Should There Be PHOSITA Juries In Patent Trials?
from the isn't-that-what-the-law-should-require? dept
One of the complaints we’ve had about the patent system and current patent law is that the law clearly says that patents should only be granted on things that are new and non-obvious to a person having ordinary skill in the art (the so-called PHOSITA). In the past, we’ve questioned why the USPTO doesn’t actually make use of skilled practitioners in determining obviousness of patents. Some patent system supporters claim that doing so is somehow unfair — but it’s exactly what the patent system calls for. It seems odd that a patent examiner should be asked to judge what a person skilled in the art thinks of a patent without ever asking a person skilled in the art. However, Dan Wallach, over at Freedom To Tinker, takes this idea a step further to ask why no one talks about requiring juries in patent trials to be made up of PHOSITAs. While he admits the idea is probably impractical, it does seem like a reasonable question. Juries are notoriously inclined to side with patent holders, often because they don’t know enough about the technology to know whether or not the patent is valid. While I agree with Wallach that this is probably impractical, it does make you wonder if there are better solutions that actually get those skilled in the art to weigh in during patent trials, rather than actively keeping them out.