Sculpture Captures Mythical Person of Skill in the Art
|Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: October 23, 2012 @ 7:30 am
Well if you have never given time to consider an appropriate representation of these people no worries. Pierre Favre, an examiner from the European Patent Office who is one of 18 examiners working in the area of solar cell technology, and Tina Heuter, an artist from Berlin, Germany, worked together for many years to create a representation of both the skilled person and the inventor.
The Person of Skill in the Art
According to Favre, the first phase of this pursuit involved searching the case law, comments and any guidelines he could find. He needed to get a feel for the language being used to express the characteristics, traits and qualities of the skilled person, who is the individual at the core of virtually everything patent related. We look to this person to determine whether something would be obvious and whether a description is adequately detailed. Truly a central, albeit fictitious, person.
Whether or not the skilled person is a nerd, an android or a boring person has been extensively discussed on the internet and elsewhere. But Favre thought that those characteristics were too secondary and perhaps even superficial for the representation of the skilled person that he wanted to capture.
After doing his research and contemplating the problem of representing the person of skill in the art Favre focused in on two particular characteristics. To Favre the skilled person is knowledgeable and unimaginative. In an e-mail exchange he explained:
The skilled person is “notional knowledgeable” (see for instance the case law of the European Patent Office T943/97). He has an exhaustive common general knowledge and an average knowledge in his technical field. However, the skilled person is in all description “unimaginative”, or “incapable of abstract reasoning” (see for instance T812/99). As Lord Reid wrote “it is permissible to make a “mosaic” out of the relevant documents, but it must be a mosaic which can be put together by an unimaginative man with no inventive capacity” (Technograph v Mills & Rockley  RPC 346 at p.355). A side effect of his unimaginative aspect is that he is considering only “the concrete and narrow teaching of a document” (see for instance T117/95).
It was this duality of the skilled person that Favre felt had to be represented.
Enter Tina Heuter. Heuter is a renowned German sculptor. She has had many exhibitions in Germany and elsewhere around the world. She was also the winner of the Andreas-Kunstpreis Award in 2003 and she opened her own gallery in Berlin in 2009. She would be the sculptor who brought to life the ideas and conceptions of Favre.
After long discussions over the core aspects of the skilled person with Favre, Heuter perceived the fictional person as someone being physically very close to his knowledge. The essence of the skilled person in Heuter’s mind was “the limitation of his inspiration to his knowledge. If his knowledge is represented by a stack of books, he is a continuation of his books, he is his books,” she explained.
With this feeling for who the person of skill in the art is, Heuter and Favre needed to come up with a representation. It was determined that the skilled person should sit on books, but not just in any ordinary casual way. You will notice that the skilled person holds tight to the stack of books he is sitting on with both his right and left hands, as if he is them for security, which of course he would in this representation. The stack of books is relatively high and has to be unstable to sit upon, so the figure also sits up straight, perhaps looking a bit uptight or perhaps concentrating on holding onto the books and not toppling over. It also appears as if the skill person blends into the book he is sitting upon, as if to further the belief that the skilled person is really inseparable from the books containing the knowledge he covets.
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There is a stark contrast between the representation of the inventor and the skilled person. ”The skilled person does not possess any inventive capability,” says Favre. “It is the presence of imagination, confidence and inventive capability in the inventor that sets him apart from the skilled person.”
Favre was loosely quoting from 1996 decision of the Technical Board of Appeal of the EPO, which explained:
[I]t is the presence of [inventive] capability in the inventor, which sets him apart from the notional skilled person. Indeed, this must be so, since inventions, no matter how surprising or inventive they turn out to be, were, when made, most probably obvious to one person, namely the inventor himself. Hence, measured against the yardstick of such an individual’s capability, most if not all technical developments would not involve an inventive step…
Favre also observed that the inventor is indeed defined as the counterpart figure of the skilled person. After all, if a new device or method is not obvious to a skilled person then this device or method is inventive and the applicant has an innovation that can be protected by patent provided it constitutes patent eligible subject matter and the other patentability requirements are satisfied.
“It is exactly that the inventor is the counterpart figure of the skilled person that lead to its ultimate depiction,” Favre explains. “The inventor sits on a tree trunk. He sits in a relaxed position. He is contemplating his invention.”
For Heuter the relationship between his invention and the inventor was critical. “The invention is at the same time physically distant from the inventor, yet spiritually close to him,” she explained. Still, however, this wasn’t enough. Heuter also observed that “the invention had to be something physically different, symbolized here by polished bronze which contrasts to patinated bronze of the skilled person.”
The final version of both figures can ordered online via www.ip-art-gallery.com. Each figure is represented with a small statue (36 cm) and a large statue (145 cm), having slightly different proportions.
Have you ever wonder how could the skilled person look like? What about an inventor? We talk about the mythical person of skill in the art, and romanticize the inventor, whether an independent inventor or professional inventor, but what comes to mind when you talk about these people?
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About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.