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Who is the skilled person ?

The EPC does not have any provision defining the person skilled in the art, or skilled person in short. Yet this person appears to be a quite important character for the purpose of applying the EPC. For example, the skilled person is important if not crucial for determining presence of an inventive step, Article 56. Most EPC study books provide a summary on what the skilled person is all about. During the working sessions of the 14th European Patent Judges' Symposium Graham Ashley, member of a Technical Board of Appeal EPO presented an article providing yet another summary.

This summary is well hidden in the in Special Edition 1 of the Official Journal 2009, yet may be interesting reading material. Like other summaries, the article discusses who or what the skilled person is (for purpose of the EPC) and provides quite a few references to the Case Law.

Unfortunately it is not possible to extract only this article, but rather you would
have to download the whole Special Edition. Anyway, the article can be found on pages 94 -101.

Below is the summary by the author of this article :

Summary (dots added by EQETools)

The skilled person (or persons) of the EPC is
  • not real,
  • being of average ability for his field
  • but having exhaustive common knowledge and aware of all things that are not technical.
  • He is a legal creation
  • whose purpose is to assist in providing a more objective approach to the assessment of inventive step and other provisions of the EPC.
  • He certainly does not cut an athletic figure,
  • and whilst being able to vault the bar of common knowledge, raising it any higher would be beyond his capability.

Happy reading !

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1 comment:

  1. There is a good definition of the "skilled person" in the Guidelines for Examination in the EPO" C-II, 4.1 - including a definition of "common general knowledge":

    The "person skilled in the art" for this purpose is considered to be the ordinary practitioner aware not only of the teaching of the application itself and the references therein, but also of what was common general knowledge in the art at the date of filing the application. He is assumed to have had at his disposal the means and the capacity for routine work and experimentation, which are normal for the technical field in question. As "common general knowledge" can generally be considered the information contained in basic handbooks, monographs and textbooks on the subject in
    question (see T 171/84, OJ 4/1986, 95). As an exception, it can also be the information contained in patent specifications or scientific publications, if the invention lies in a field of research which is so new that the relevant
    technical knowledge is not yet available from extbooks (see T 51/87, OJ 3/1991, 177).

    Kind regards, Cees Mulder


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