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A Skilled Man or Nerd?

Written by Michael Coyle on 24 June 2009

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I am often asked about the skilled man. The man skilled in the art is crucial to Patent law. The claims of a patent must be understood as if read by an expert in the field. As Jacob J said in the Rockwater case "the court must don the mantle of the skilled man."

The skilled man has statutory recognition as can be found in Articles 56, 83 and 100 of the EPC which refer to "the person skilled in the art."

Jacob J refers to the skilled man as a nerd:

"It is settled that this man, if real, would be very boring -a nerd. Lord Reid put it this way in Technograph v Mills & Rockley [1972 RPC 346 at p355

"....the hypothetical addressee is a skilled technician who is well acquainted with workshop technique and who has carefully read the relevant literature. He is supposed to have an unlimited capacity to assimilate the contents of, it may be, scores of specifications but to be incapable of scintilla of invention. When dealing with obviousness, unlike novelty, it is permissible to make a "mosaic" out of the relevant documents, but it must be a mosaic which can be put together by an unimaginative man with no inventive capacity."

The skilled man will have a very good "background technical knowledge - the so-called common general knowledge" Nor does the skilled man have to be isolated, "an assembly of nerds of different basic skills, all unimaginative. But the skilled man is not a complete android, for it is also settled that he will share the common prejudices or conservatism which prevail in the art concerned".

My nerd is better than your nerd

The best nerd can be turned against the patentee so as to "downgrade or dismiss the evidence of an expert called to say that a patent is obvious." The notion of a skilled man is "to educate the court in the technology...they come as teachers, as makers of the mantle for the court to don. For that purpose it does not matter whether they do or do not approximate to the skilled man. What matters is how good they are at explaining things".

This is an excellent way of finishing this article; a skilled man is a man good at "explaining things"

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