The skilled person: an evolving concept

Abstract

The skilled person is a concept central to patent law, underpinning the analysis of obviousness, sufficiency, claim construction, novelty, added matter and priority. Identifying such a person correctly, particularly the level of skill and the common general knowledge that they should possess, is critical to determining whether a patent is valid and/or infringed and has significant implications for the pharmaceutical industry. However, the concept can be difficult to define. Once referred to as ‘The man on the Clapham omnibus‘ of patent law, the skilled person is a technician who is skilled in the art yet wholly devoid of imagination. Nevertheless, his attributes and knowledge, which are context-dependent and vary from art to art, are continually evolving. This article will look at the evolution of the skilled person, focusing on the implications for the future of pharmaceutical patents and patent litigation.