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Date Published

Note: The information in this part only applies to standard patent applications with an examination request filed on or after 15 April 2013.  For all other standard patent applications, see Identifying the Person Skilled in the Art (PSA).

The person skilled in the art should be identified in light of the problem that the claimed invention is directed to solving (see Determining the Problem) and not in light of the claimed solution.

The person skilled in the art:

  • is a skilled but non-inventive worker in the relevant field of technology;
  • knows the common general knowledge in the art;
  • could be anyone from a tradesman in some arts to a highly qualified scientist in others depending on the nature of the problem; and
  • could be a team of people.

See, for example, Root Quality Pty Ltd v Root Control Technologies Pty Ltd 49 IPR 225, American Cyanamid v Ethicon Ltd [1979] RPC 215 and Sunbeam Corp v Morphy-Richards (Aust) Pty Ltd (1961) ALJR 212.

Given the dependence of identifying the person skilled in the art on the problem solved by the claimed invention, where the claimed solution is in an art remote from the identified problem, the art in which a novelty search is conducted will be different from the art of the person skilled in the art.  In these circumstances, examiners must decide:

  • whether the skilled person, while deemed to have been aware of and to have carefully read any documents located in the search, would have appreciated the relevance of those documents to the problem that the claimed invention seeks to solve; and
  • whether any documents would be considered a worthy starting point for further investigation or development.  

Thus, in certain situations it may not be possible to cite a document located during the novelty search for the purposes of inventive step.

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