[2019-14] Construct of Time-Varying PHOSITA: Median Wage Workers as the PHOSITA
Construct of Time-Varying PHOSITA: Median Wage Workers as the PHOSITA
Park, Kee-Yong Moon Soul Graduate School of Future Strategy, KAIST Park, Sung-Pil Moon Soul Graduate School of Future Strategy, KAIST
Abstract In Graham v. John Deere, the Supreme Court of the United States illustrated factors to be inquired to determine whether an invention is obvious. In this article we suggest these Graham factors as key economic elements rooted in the market for knowledge workers, which is a labor market with unique attributes for producing innovation. By reinterpreting the Graham factors and thereby reestablishing an economic construct of the patent law, one can have a fresh look on various patent law issues outside the conventional framework. This new framework implies that the person having ordinary skill in the art (“PHOSITA”) under the patent law is a key economic factor associated with various patent law issues, although it has long been criticized by commentators due to, among others, its ambiguousness. “Threshold Time” is introduced to connect the skill level with industry level productivity, and we associate the industry level productivity with median wage using simple statistical approximation. We suggest that the median wage of knowledge workers is reflection of PHOSITA’s skill level that can be utilized as a policy lever which moves the pendulum of the patent system back and forth. This article presents methodology for auto-adaptive control of the patent system in time-varying industries with time-varying PHOSITA consistent with the Graham Factors and the inducement standard.
Keywords: Graham Factors, Market for Knowledge Workers, PHOSITA, Non-obviousness, Enabling Disclosure, Threshold Time, Median Wage Workers