A Cross-Jurisdictional Analysis of the “Person Skilled in the Art” (PSITA)/ “Person Having Ordinary Skill in the Art” (PHOSITA) standard under Patent laws.

Abstract

This research paper demonstrates a cross-jurisdictional analysis of the “Person Skilled in the Art” (PSITA) / “Person Having Ordinary Skill in the Art” (PHOSITA) standard under Patent laws. In order to receive a grant of a patent, it is necessary for the invention to be “novel”, have an “inventive step” and be capable of “industrial application”. It is also necessary for the invention to be sufficiently disclosed in the patent application. All the above-mentioned factors are judged by a hypothetical legal construction, i.e. the PSITA/PHOSITA. However, each jurisdiction has set its own standard for the PSITA/PHOSITA, leading to differential patenting standards across all the jurisdictions. Therefore, this research paper aims to do a comparison in the skill standard of the PSITA/PHOSITA in India, U.S.A and U.K. This topic is of great importance as it is a neglected area in the field of Patent law. The aim is to find out which jurisdiction has set the most favorable skill standard which should be followed by others as well. The outcome of the research paper is that the skill standard set by India is the most logical as they have set a higher standard to assess the Inventive step and have diluted the standard when it comes to disclosure requirements. Further, developing a uniform skill standard to be followed by all jurisdictions should also be strongly considered.