How is obviousness of a patent claim considered when several individuals contribute to the claimed subject matter? Much analysis in patent law focuses on a person having ordinary skill in the art, or a “PHOSITA.” The PHOSITA is the touchstone for many patentability questions, such as whether an invention is obvious in light of prior art. US patent law has, to my knowledge, always constructed PHOSITA considerations around a single person.
Dennis Crouch writes in his latest Patently-O article that a UK court has just applied a “THOSITA” analysis to obviousness – would the claimed invention be obvious from the standpoint of a “skilled team?” This change raises the question in the US whether the PHOSITA analysis applies equally to a team as it does to a person, or whether a new framework for team-invented patent material is needed. After all, the number of patents invented by teams of people, rather than sole inventors, is steadily rising. Joint inventorship is very common, especially in the corporate assignee context.
If a THOSITA standard were adopted, what would its effect be on obviousness? It seems that it would inevitably raise the obviousness threshold on subject matter contributed to by more than one person beyond that which is applied to single inventor subject matter. It may not even be necessary, though. Crouch posits that US patent law already implicitly includes team-based inventive activity by its inclusive construct of the word “person.” Example: 17 USC 102 states that “A person shall be entitled to a patent unless…” – teams of people are granted patents, and so “person” is meant to include “team.”