Analysis of the concept of ‘person skilled in the art’

By Liang Xiaoguang, China Sinda Intellectual Property

The concept of “person skilled in the art” is used in numerous aspects of patent examinations, so accurately understanding this concept is of great significance to both patent examiners and agents.

梁晓广 Liang Xiaoguang 中原信达 合伙人、专利代理人 Partner, Patent Attorney China Sinda
Liang Xiaoguang
Partner, Patent Attorney
China Sinda

Definition of concept

According to the definition in the examination guidelines, a “person skilled in the art” is a hypothetical person who is presumed to be familiar with all of the ordinary technical knowledge, in the technical field to which the invention belongs, that exists before the filing date or priority date. This person can access all prior art in the field and has the capability of applying the conventional experimental methods available before that date, but has no capacity of creativity. If the technical problem to be resolved can cause the person skilled in the art to seek technical means in another technical field, he or she should also have the capacity to access the relevant prior art, ordinary technical knowledge and conventional experimental methods in that other technical field existing before the filing date or priority date.

Some people understand “person skilled in the art” as someone who knows all of the prior art existing before the filing date or priority date, but this is a misunderstanding. In fact, pursuant to the definition above, what a “person skilled in the art” is familiar with is limited to the ordinary technical knowledge in the art. As for other knowledge of the prior art, including the information contained in patent documents, this person only has the capacity to access it.

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