專利法中「發明所屬技術領域中具有通常知識者」之法實證研究

A Legal Empirical Study of the PHOSITA in the Patent Law

The PHOSITA (person having ordinary skill in the art) is an important concept in the current Patent Law. For example, PHOSITA is the objective standard for determining patent non-obviousness. Theoretically, when the patent examiners or judges (hereinafter “the Decision Makers”) examine the non-obviousness of a patent, they need to determine the technology level of the PHOSITA first. However, a review of our courts’ decisions shows that our courts have never identified the PHOSITA’s skill/experience level. Nor have they explained how to judge the non-obviousness in the perspective of the PHOSITA during the course of the decision-making. Consequently, it raises the question of whether the Decision Makers determine the patent nonobviousness subjectively.