The Hypothetical Infringer? Implications of the Synthesis of Professional Patent Agency and the Anglo-American Hypothetical Person Skilled in the Art

Abstract

Historical patent jurisprudence abounds with statements that the hypothetical person skilled in the art is not a lawyer. However, recent case law suggests the opposite, going so far as to state that the hypothetical person skilled in the art is expected to consult with a professional patent agent during claim construction. Beginning from the principle that the hypothetical skilled person takes her place among law’s other ‘reasonable people’, this article conducts an analysis of Anglo-American law’s other ‘reasonable people’ to determine what this might tell us about the hypothetical skilled person’s expanding patent law knowledge base. This analysis concludes that in other areas of law, the reasonable person often consults with external legal professionals when her own legal rights and liabilities are at stake. Consulting with external legal experts is meant to guide the reasonable person’s conduct to ensure that her rights are protected or to ensure that she avoids potential legal liability. Correspondingly, if patent jurisprudence posits that the hypothetical person skilled in the art is expected to consult with legal experts when reading and interpreting a patent, then the law treads close to implicitly transforming the hypothetical skilled person into a potential infringer who is reading a patent predominantly as an exercise in avoiding infringement rather than an exercise in knowledge acquisition. This article suggests that the objectives often posited in support of this transformation may be misguided.