Wednesday, October 30, 2013

Rise of the Chimerical PHOSITA

In this post-modern patent world,
our judicial truth seekers have cobbled together a new creature.

Behold Super-PHOSITA
(the alien cyber-robotized super humanoid who came to this planet in order to pretend to be a meek and mild artisan having "ordinary" skill in his/her specialized field of routine endeavor, but who underneath it all is actually ... Shhh. Don't tell. It's a secret.).

Super-PHOSITA is all knowing and all powerful.

Super-PHOSITA is at the same time meek, mild and ordinary.

Super-PHOSITA spends his/her time engaged in the "routine" activities of his/her "art".

Super-PHOSITA simultaneously spends his/her time ruminating about ALL publications, analogous or in his/her field and ALL possible combinations of these publications in constant look out for recognition of those permutations which are "obvious" and those few which are not.

See, 2013-10-30 12-1611 PATO RANDALL MFG. v. REA [OPINION] Precedential

"In KSR, the Supreme Court criticized a rigid approach to determining obviousness based on the disclosures of individual prior-art references, with little recourse to the knowledge, creativity, and common sense that an ordinarily skilled artisan would have brought to bear when considering combinations or modifications. KSR, 550 U.S. at 415-22. Rejecting a blinkered focus on individual documents, the Court required an analysis that reads the prior art in context, taking account of “demands known to the design community,” “the background knowledge possessed by a person having ordinary skill in the art,” and “the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418. This “expansive and flexible approach,” id. at 415, is consistent with our own pre-KSR decisions acknowledging that the inquiry “not only permits, but requires, consideration of common knowledge and common sense.”"

"Once it is established that a prevalent, perhaps even predominant, method of stowing a bulkhead panel was to raise it to the ceiling, it is hard [[for us post-modern judges to now ]] .. see why one of skill in the art would not have thought to modify Aquino to include this feature— doing so would allow the designer to achieve the other advantages of the Aquino assembly while using a stowage strategy that was very familiar in the industry."

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