Unicorns, PHOSITAs, and Other Creatures
The “reasonable man” or “reasonable person” is that mythical creature (not unlike a unicorn) that exists in many different areas of law purportedly to allow us to view the situation at issue from a reasoned, logical, objective perspective. We have in patent law a special breed of this legendary beast – the “person having ordinary skill in the art” or PHOSITA. In teaching students about the PHOSITA, I had always assumed that the concept would be fairly simple to grasp, since the reasonable person was, or at least should be, familiar to them. This assumption was shattered, indirectly, by one student’s exam answer.
I am not sure if the student was absent the day I introduced the PHOSITA and thus he took me at my phonetic pronunciation, or if instead he was clever and was making a point I had earlier failed to grasp. (I personally believe the former, but I could be wrong.) Anyway, he answered all of his exam questions by looking at the issue from the perspective of the “Faux-Cita.” The fairy-tale beast raises its ugly head…
For me, any amusement during exam grading results in an unnatural amount of laughter. But once I recovered from this outburst, I started thinking about the unintended wisdom of the “faux-cita”. This reasonable person, or ordinary artisan, is a concept that I took for granted; but in reality, this legal fiction is a moving target for students. He changes based on the invention in question – the PHOSITA in rocket science is different from the PHOSITA in running shoes. But he also may change based on the test for which we are using him – How would a PHOSITA understand this claim term? Would a PHOSITA understand how to make & use the invention based on this disclosure? Would a PHOSITA have found this invention obvious?
The question for me is how to trap this fantastic being and make him real for my students. How do you explain a legal fiction without exposing that there is no Tooth Fairy? Once the word “fiction” comes out, students understand that this is something we have “made up” and therefore presume it is not meaningful. Even if they can get over that the most important person at the table is not real, they still do not know how he factors into the equation – especially since we don’t know who he is (and in patent law, he is likely to be unlike any of us). So how do you bring your legal fiction into reality?
(Image Source: The Lady and the Unicorn, Wikicommons)