Federal Circuit: You Are Not A Person of Ordinary Skill in the Art

Written by Mark Terry

Today the Court of the Appeals for the Federal Circuit issued a decision that plainly answers the question of who is a person of ordinary skill in the art – Extreme Networks v. Enterasys Networks (Fed. Cir. 2010). As a Florida Patent Attorney who routinely deals with this question, I found it refreshing to read a Federal Circuit decision that tackles this issue head on.

The case of Extreme v. Enterasys involved a two-way patent dispute over router-based technologies. At issue was whether the lower court erred in excluding one party’s expert because he was not a person of ordinary skill in the art.

The previous case law on this subject is a little ambiguous: The person of ordinary skill in the art is a hypothetical person who is presumed to have known the relevant art at the time of the invention. Factors that may be considered in determining the level of ordinary skill in the art may include: (A) “type of problems encountered in the art;” (B) “prior art solutions to those problems;” (C) “rapidity with which innovations are made;” (D) “sophistication of the technology; and” (E) “educational level of active workers in the field. In a given case, every factor may not be present, and one or more factors may predominate.” In re GPAC, 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995); Custom Accessories, Inc. v. Jeffrey-Allan Industries, Inc., 807 F.2d 955, 962, 1 USPQ2d 1196, 1201 (Fed. Cir. 1986 ); Environmental Designs, Ltd. V. Union Oil Co., 713 F.2d 693, 696, 218 USPQ 865, 868 (Fed. Cir. 1983).

But today’s Federal Circuit decision was much more understandable:

“Frederiksen would not qualify as a person of ordinary skill in the relevant art even under her own proposed definition. Frederiksen received an Associate of Applied Science degree in Computer Programming. She worked as a system administrator for several corporations, but she never seems to have worked on ‘the design or development of high speed switches, bridges, or routers.’ General experience in a related field may not suffice when experience and skill in specific product design are necessary to resolve patent issues. See, e.g., Flex-Rest, LLC v. Steelcase, Inc., 455 F.3d 1351, 1360-61 (Fed. Cir. 2006) (affirming exclusion of an ergonomics expert where the invention at issue related to an ergonomic keyboard design). Therefore, the district court did not abuse its discretion by ruling that Frederiksen was an unqualified expert.”

How’s that for a straight answer?

Lessons Learned: The educational moment here is that a person of ordinary skill in the art in a technology area should probably have a graduate degree, or higher, and should have probably have some extensive work experience designing or developing a product. Otherwise, you risk a finding that he or she is deemed to be a person WITHOUT ordinary skill in the art.


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