Unicorns, PHOSITAs, and Other Creatures
Concurring Opinions:
The “reasonable man” or “reasonable person” is that mythical creature (not unlike a unicorn) that exists in many different areas of law purportedly to allow us to view the situation at issue from a reasoned, logical, objective perspective. We have in patent law a special breed of this legendary beast – the “person having ordinary skill in the art” or PHOSITA. In teaching students about the PHOSITA, I had always assumed that the concept would be fairly simple to grasp, since the reasonable person was, or at least should be, familiar to them. This assumption was shattered, indirectly, by one student’s exam answer.
I am not sure if the student was absent the day I introduced the PHOSITA and thus he took me at my phonetic pronunciation, or if instead he was clever and was making a point I had earlier failed to grasp. (I personally believe the former, but I could be wrong.) Anyway, he answered all of his exam questions by looking at the issue from the perspective of the “Faux-Cita.” The fairy-tale beast raises its ugly head…