Level of Skill in the Art Controls Obviousness Determination

Daiichi Sankyo Co., Ltd. v. Apotex, Inc., [06-1534](July 11, 2007)[ARCHER, Michel, Dyk) NON-PRECEDENTIAL The Federal Circuit reversed the trial court's finding that U.S. Patent No. 5,401,741 on a method of treating bacterial ear infections was validity, holding that the patent would have been obvious in view of the prior art.
BRIEF: The Federal Circuit began with the level of ordinary skill in the art. Factors that may be considered in determining the level of ordinary skill in the art include: (1) the educational level of the inventor; (2) type or problems encountered in the art; (3) prior art solutions to those problems; (4) rapidity with which innovations are made; (5) sophistication of the technology; and (6) educational levels of active workers in the field. Noting that the inventors were specialists, that others working in the field were also specialists, and that the problem the inventors were trying to solve was one in the purview of specialists the Federal Circuit rejected the district court's finding that a person of ordinary skill in the art was a general practice physician. The Federal Circuit further found that the error is assessing the level of ordinary skill in the art tainted the obviousness analysis, because the prior art would have made the invention obvious to specialists in the field.