S. 2(1)(ja) Patents Act | Person Skilled In 'Art' Is Someone Whose Skill Is Greater Than The Average Person: Madras High Court

Justice Senthilkumar Ramamoorthy observed,

“I recognise that the statute neither uses words that indicate enhanced levels of skill such as “highly”, “outstandingly” or “extraordinarily” nor words that indicate a low or average level of skill such as “low” or “ordinary” or “average” to further qualify the “skilled” person. By taking into account all of the above, on balance, in my view, the “person skilled in the art” as per Section 2(1)(ja) is a person whose skill level is good/greater than average. Because most disciplines/arts require a range of skills or skill set, this person should possess the skill set to do the job well,”.

The court was hearing an appeal against the rejection of a patent application. The appellant, had filed an application for a patent in respect of an invention titled “Polyamide Material Having High Fluid Barrier Properties”. It was claimed that the invention related to polyamide materials having high barrier properties to fluids i.e., gases and liquids.

The appellant's application was however rejected claiming that it was not novel and lacked inventive steps. For this, the authorities cited prior art documents. Though the appellant argued that there was a novelty in the present invention, the authorities argued that a person skilled in the art would be motivated by the teachings in the prior art to improve the barrier properties and thus could arrive at the present invention.

This prompted the court to have a detailed discussion on who a “person skilled in the art” would be under the Act. The court noted that “a person skilled in art” was a hypothetical person created by the law. The court thus observed that a person skilled in art would be a person having the ability to do a job, task or activity well and such a person could be from any range of discipline. Since the statute does not provide any adjective to the level of skill that the person needs to have, the court observed that such skill would be greater than average.

Further, the court noted that the educational/academic or vocational qualifications of the person would depend on the art. The court added that work experience would be a requirement as an ordinary person with requisite educational qualification but no work experience would not be a skilled person. The court also remarked that such a person should be able to use the tools of the trade.

With respect to identifying the person skilled in the art, the court observed that the person could be readily identified from the field of invention. The court further added that this person could be an individual or a group of persons with the requisite skills.

“Depending on the nature of the claimed invention, the person, or team of persons, skilled in the art could be from a specific industry or industries or be proficient in technology with use cases in multiple industries. While undertaking this exercise, it is necessary to bear in mind that the object is certainly not to identify a person or team of persons with the capacity to invent in the field of the claimed invention,' the court added.

In the present case, since the invention included the use of synthetic polymers and was ideally used for the storage of liquids like gasoline, the court opined that the person skilled in the art would be a chemical engineer with an understanding of polymers.

The court observed that in the facts of the case, it would be obvious to a non-inventive person skilled in the art to combine the elements in the earlier art and through routine experimentation arrive at the claimed invention. The court, thus, agreed with the Assistant Controller of Patents and Designs in holding that there was no novelty.

Thus, finding no reason to interfere, the court dismissed the plea.

Counsel for the Appellant: Ms.Vindhya S.Mani, Mr.Kiran Manokaran, for M/s.Lakshmikumaran and Sridharan

Counsel for the Respondents: Mr.S.Janarthanam, SPC & Mr.Anoop K.Joy, Assistant Controller of Patents

Citation: 2024 LiveLaw (Mad) 76

Case No: (T) CMA (PT) No.88 of 2023 (OA/14/2017/PT/CHN)