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8.5.6 Identifying the Person Skilled in the Art

Date Published

Key Legislation:

Patents Act:

  • s7 Novelty, inventive step and innovative step
  • s18 Patentable Inventions

Related Chapters:

  • Determining the Problem
  • Ascertained
  • Regarded as Relevant

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 art also includes any related field of technology where the skilled person would be expected to look for a solution to the problem. As the person skilled in the art is non-inventive, it is unlikely that the person would look for a solution in arts remote from the problem.

The basic rules for determining who the person skilled in the art is are the same as those for determining the addressee of a specification. Thus, 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 in Australia;
  • 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 225American Cyanamid v Ethicon Ltd [1979] RPC 215 and Sunbeam Corp v Morphy-Richards (Aust) Pty Ltd (1961) ALJR 212.

Examiners should generally assume in the first instance that the addressee of the specification is the same person as the person skilled in the art. However, where the claimed solution to the problem is in an art remote from the problem, the addressee will likely be a different person from the person skilled in the art. In this situation, the art in which a novelty search is conducted (i.e. the art of the addressee) will be different from the art of the person skilled in the art and it may not be possible to cite a document located during the search for the purposes of inventive step (see also Ascertained and Regarded as Relevant).

Amended Reasons

Amended Reason Date Amended
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