Is Patent Law Technology Specific?

Dan L. Burk, and Mark A. Lemley

1/01/2005
(Original Publish Date: 2001)

Although patent law purports to cover all manner of technologies, we have noticed recent divergence in the standards applied to biotechnology and to software patents: the Federal Circuit has applied a very permissive standard of obviousness in biotechnology, but a highly restrictive disclosure requirement. The opposite holds true for software patents, which seems to us exactly contrary to sound policy for either industry. These patent standards are grounded in the legal fiction of the "person having ordinary skill in the art" or PHOSITA. We discuss the appropriateness of the PHOSITA standard, concluding that it properly lends flexibility to the patent system. We then discuss the difficulty of applying this standard in different industries, offering suggestions as to how it might be modified to avoid the problems seen in biotechnology and software patents.