针对此问题，重新翻一些资料後，将自己读到内容整理，如下供大家参考。 Person of Ordinary Skill, not Inventor Judge Rich made an important modification to his“inventor…working in his shop” metaphor in Kimberly-Clark v. Johnson & Johnson, 745 F.2d 1437, 223 USPQ 603 (Fed. Cir. 1984), by making clear that it is the hypothetical person of ordinary skill, not the inventor, that is in the shop. He proclaimed (id. at 1454): “We hereby declare the presumption that the inventor has knowledge of all material prior art to be dead.” By substituting the person or ordinary skill, Judge Rich conformed his Winslow metaphor to the language of ’103. 於1984年以前，判断可专利性的标准是以“发明人”为准，而不是以“具有通常技能者 ”为准。在1984年的判决Kimberly-Clark v. Johnson & Johnson以及Winslow中，法官 Rich清楚地宣布，以“具有通常技能者”替代“发明人”。 Level of Ordinary Skill The approach in Winslow shows one construct for hypothesizing the person of ordinary skill in the art and the challenge facing that person. Is it fair to charge the aspiring patentee with knowledge of all the analogous art by endowing the artisan of ordinary skill with omniscience? Is it also fair to assume that the hypothetical artisan was focused on solving the particular problem on which the inventor was dealing? The presumption does simplify the obviousness analysis by putting all inventors in the same position so that duplicative invention is not permitted. In addition, perhaps the presumption is a fair trade-off with the presumption that the hypothetical artisan has only ordinary skill. Judge Hand recognized perhaps another trade-off: 在Winslow的学理方法中，显示了“具有通常技能者”之虚拟人物的构想及他所面临的挑 战。藉由使“具有通常技能者”为全知者，来课予申请人应知道所有类似领域之知识的负 担，是公平的吗？藉由假定这个虚拟人物仅需具有通常技能，也许，这样的假设会是一种 公平的权衡（trade-ff）。然而，法官Hand还指出另外一种权衡。 Perhaps it would be desirable that an inventor should not be charged with acquaintance with all that the patent offices of this and every other country contain, and with all that has ever been publicly sold or used in the United States; although in that event it would be an inevitable corollary that infringements should be limited to plagiarisms. With such considerations we have nothing to do; as the law stands, the inventor must accept the position of a mythically omniscient worker in his chosen field. As the arts proliferate with prodigious fecundity, his lot is an increasingly hard one. (Merit Mfg. Co. v. Hero Mfg. Co., 185 F.2d 350, 352, 87 USPQ 289, 291 (2d Cir. 1950).) 也许最好的情况是，不应该课予发明人应熟悉本专利局及其他国家专利局所累积内容以 及应熟悉在美国公开贩卖或使用之技术的负担，即使在此情况下所造成的自然结果会是， 侵权仅能限於剽窃（难以举证）。认知到此考量後，我们无能为力，在法律的角度，只能 要求发明人必须接受在他所选择的领域中有着一虚构的全知者的角色。随着技艺以巨大繁 殖能力急速地增殖，他的命运也愈来愈艰难。 在Environmental Designs, Ltd. V. Union Oil Co., 713 F.2d 693, 696, 218 USPQ 865, 868 (Fed. Cir. 1983)的判决中，法官提供了决定具有通常技能者之水平的六个因 素： (1) the educational level of the inventor (2) the type of problems encountered in the art (3) the prior solutions to those problems (4) the rapidity with which inventions are made (5) the sophistication of the technology (6) the educational level of workers active in the field 若比对MPEP 2141.03 ，可以发现缺少了“ the educational level of the inventor” 的判断因素。应该是1983年後的判决中，因应以“具有通常技能者”替代“发明人”的构 想，而将它删除了。 MPEP 2141.03 Level of Ordinary Skill in the Art 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 Indus., 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). 112及103段落情况下的虚拟人物是相同的吗？ The Person Skilled in the Art Is the skilled artisan under section 112 the same hypothetical person as the artisan of ordinary skill under section 103? In some ways he is, and in some he is not. First, under section 103 the pertinent field of art is defined by the problem to be solved, and the courts look for a person skilled in that field. But does that mean one field of technology? Not necessarily. Remember that we are talking about a hypothetical person, who may not actually exist. One district court, in a section 103 context, found the pertinent fields to be several, all of which the hypothetical person either had familiarity with, or would be expected to consult with, someone who did. Likewise, under section 112, the Court of Customs and Patent Appeals has suggested that an invention directed to more than one field may be enabled by looking to the knowledge of multiple specialists. For example, an invention that uses a computer program to operate a structure in a novel way may be enabled by the knowledge of both a computer programmer and an engineer in the appropriate field. See In re Naquin, 398 F.2d 863, 158 USPQ 317 (CCPA 1968). Second, under section 103, the artisan of ordinary skill is presumed to know about all of the relevant prior art in the pertinent field. That presumption is driven by the policy of imposing an absolute duty to research all of the prior art so as to avoid duplicative inventive activity and overlapping patents. In contrast, the policy behind section 112 is to make the invention available to the public without requiring a detailed search. See 3 Donald S. Chisum, Chisum on Patents § 7.03[2], at 7-28 to 7-29. Thus, in Webster Loom, the Court endowed the artisan under section 112 with knowledge of “[t]hat which is common and well known.” Hence, the omniscience of the hypothetical person under section 103 does not carry over totally to section 112. 在某些情况下是，在某些情况下不是。 首先，在段落103下，所属领域是欲解决的问题，而且可以为复数个领域。相同地，在段 落112下，一个发明也可以被导向多个领域，并且根据多种类专家的知识也致能多数的专 家。 第二，在段落103下，具有通常技能者被假设成知道所有类似领域之知识。这样的假设是 政策导向，藉由课予申请人应检索所有习知技术的负担，避免相同的发明活动及重叠的发 明。相反地，在段落112下，是要让发明在不需要仔细检索的情况下能够公开於公众。因 此，在Webster Loom中，法院赋予段落112下的工匠具有common and well known的知识。 在102下也应该考虑到虚拟人物的技能水平，因为引用技术必需是known by persons of ordinary skill，它的知识水平也是全知的。此外，在书面记载要件中，针对沈默的部分 ，可以主张原说明书中已固有地、暗示地记载。而要作为102的引用文献，也可以利用其 他文献（全知的）举证该引用文献已固有地记载沈默的部分。判断标准也是以persons of ordinary skill为准。 在段落103下，分析习知技术时，虚拟人物除了全知外，也被赋予具有通常的创造能力。 此部分可以参照 MPEP 2131及2141.03。 2131 Anticipation — Application of 35 U.S.C. 102 Therefore, one of ordinary skill in the art would have known that “ commercial blood bags” meant bags containing DEHP. The claims were thus held to be anticipated. “To serve as an anticipation when the reference is silent about the asserted inherent characteristic, such gap in the reference may be filled with recourse to extrinsic evidence. Such evidence must make clear that the missing descriptive matter is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill.” (“how one of ordinary skill in the art would understand the relative size of a genus or species in a particular technology is of critical importance”) Patentee described claimed temperature range as “critical” to enable the process to operate effectively, and showed that one of ordinary skill would have expected the synthesis process to operate differently outside the claimed range. MPEP 2141.03 “A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007). --

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