一、Paragraph 2 of Article 22 of the R.O.C. Patent Act provides: “An invention…can be easily made by a person ordinarily skilled in the art based on prior art shall not be patented.” Please elaborate on:
(一)The nature of “a person ordinarily skilled in the art.”（10 分）
(二)In making a judgment under this paragraph, several steps must be taken.
Please describe what these steps are.（20 分）
(一)The nature of “a person ordinarily skilled in the art.”（10 分）
(二)In making a judgment under this paragraph, several steps must be taken.
Please describe what these steps are.（20 分）
Tentative Answer(score aim at 80%) :
(一)
The phrase "a person ordinarily skilled in the art" is commonly used in the context of patent law. It refers to an imaginary person who possesses average skills and knowledge in a particular technical field or industry relevant to the invention in question. This person is often referred to as the "person of ordinary skill in the art" or "POSITA."
When evaluating the validity of a patent or assessing the level of inventiveness, the perspective of a person of ordinary skill in the art is crucial. This hypothetical person is presumed to have the average skills, knowledge, and experience within a specific field or industry at the time of the invention. The legal concept helps establish the baseline for determining whether an invention is non-obvious or inventive to someone with ordinary skills in the relevant field.
The level of skill and knowledge attributed to the person of ordinary skill in the art can vary based on the specific technology or industry involved. The determination of the skill level is made by the patent examiner or the court handling the patent dispute. This perspective is essential in the assessment of prior art and in determining whether an invention meets the criteria for patentability.
(二)
The said provision defines the "inventive step" (aka "non-obviousness") requirement in determining the patentability of an invention. In the context of patent law, an invention involves an inventive step if it is not obvious to a POSITA at the time of filing. Here are the steps typically taken in making a judgment on an inventive step of a patent application:
When evaluating the validity of a patent or assessing the level of inventiveness, the perspective of a person of ordinary skill in the art is crucial. This hypothetical person is presumed to have the average skills, knowledge, and experience within a specific field or industry at the time of the invention. The legal concept helps establish the baseline for determining whether an invention is non-obvious or inventive to someone with ordinary skills in the relevant field.
The level of skill and knowledge attributed to the person of ordinary skill in the art can vary based on the specific technology or industry involved. The determination of the skill level is made by the patent examiner or the court handling the patent dispute. This perspective is essential in the assessment of prior art and in determining whether an invention meets the criteria for patentability.
(二)
The said provision defines the "inventive step" (aka "non-obviousness") requirement in determining the patentability of an invention. In the context of patent law, an invention involves an inventive step if it is not obvious to a POSITA at the time of filing. Here are the steps typically taken in making a judgment on an inventive step of a patent application:
1. Identify the Claims: Review the patent claims, which define the scope of the invention. Claims outline the specific features and elements that the patentee is seeking to protect.
2. Determine the Prior Art: Identify relevant prior art, which includes existing patents, published literature, public disclosures, or any information that was publicly available before the filing date of the patent application.
3. Define the POSITA: Establish the characteristics and knowledge level of a person of ordinary skill in the art relevant to the invention. The POSITA represents an average skilled person in the specific field of technology.
4. Assess the Differences: Compare the invention in the patent claims with the identified prior art. Determine whether the claimed invention includes novel features or elements that were not present in the prior art.
5. Evaluate Obviousness: Determine whether the differences between the invention and the prior art would have been obvious to a POSITA. Consider "negating factors" such as motivation to combine multiple citations, simply changing and mere aggregation, and if necessarily also "affirming factors" such as teaching away, advantageous effects and some auxiliary factors.
It's important to note that this assessment outcome can vary based on jurisdiction and specific case details. Patent examiners, courts, or relevant patent offices typically conduct these assessments during the patent examination process or in patent litigation proceedings.
(P.S.) Based on answers given by ChatGPT 3.5 !!