PHOSITA’s objectivity standards do the same

As should be apparent from the discussion up until this point, the objective PHOSITA standard in patent law shows considerable consonance with the issues identified and analyzed in feminist scholarship on law and on science. The PHOSITA, not surprisingly, displays many of the characteristics criticized by Bender in her evaluation of tort law’s objective personification of a legal standard.115 As depicted in the Winslow tableau, the standard fosters a view of innovation that is detached, isolated, and divorced from the community. That insight might be pursued yet further, applying insights generated by MacKinnon, Haraway, and other commentators, to query whether the ostensible objectivity or neutrality of the PHOSITA standard is masking social biases and power relationships.

Indeed, a little investigation reveals that the PHOSITA, like the reasonably prudent person, is a relative latecomer to its ostensibly genderneutral designation. The PHOSITA became a “person” of skill only quite recently. Older cases discussing the obviousness standard refer to the “skilled man,” and indeed this terminology is still current in the patent systems of other industrialized English-speaking countries.116 This suggests that we might ask regarding the PHOSITA, as Bender does in the case of tort law’s reasonably prudent person, whether the original, gendered designation of the legal standard may be revealing with regard to an underlying practical bias. We might also wonder whether the switch to less gendered terminology in fact makes any difference to the underlying assumptions of the standard. If the biases in science and other “objective” practices are found in the PHOSITA, then the arguments we have reviewed thus far regarding objectivity have direct implications for the patent system that harbors the PHOSITA.