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Archived updates for Friday, November 05, 2004

TGIF for the Patent "Nerd"

According to Lord Justice Jacob in Rockwater Ltd v Technip France SA & Anor [2004] EWCA Civ 381 (01 April 2004), "the 'man skilled in the art' is invoked at many critical points of patent law. It is settled that this man, if real, would be very boring - a nerd. Lord Reid put it this way in Technograph v Mills & Rockley [1972] RPC 346 at p.355

. . . the hypothetical addressee is a skilled technician who is well acquainted with workshop technique and who has carefully read the relevant literature. He is supposed to have an unlimited capacity to assimilate the contents of, it may
be, scores of specifications but to be incapable of scintilla of invention. When dealing with obviousness, unlike novelty, it is permissible to make a "mosaic" out of the relevant documents, but it must be a mosaic which can be put together by an unimaginative man with no inventive capacity.
"The man can, in appropriate cases, be a team - an assembly of nerds of different basic skills, all unimaginative. But the skilled man is not a complete android, for it is also settled that he will share the common prejudices or conservatism which prevail in the art concerned. None of the above is controversial. However, sometimes the requirement that the skilled man be uninventive is used by counsel for a patentee in an attempt to downgrade or dismiss the evidence of an expert called to say that a patent is obvious - 'my witness is more nerdlike than his' is the general theme."

However, according to Lord Justice Pill in the same decision, such patent nerds should not be labelled as simply boring robots.
As to the "man skilled in the art", he is described by Jacob LJ as a 'nerd' (paragraphs 7 and 11) and as "not a complete android" (paragraph 10), which suggests that he is part of the way to being an android. A 'nerd' is defined in the Concise Oxford Dictionary (10th Edition 1999) as "a person who lacks social skills or is boringly studious" and an 'android', in the same work, as "(in science fiction) a robot with a human appearance". I hope that those working in this field will not regard "men skilled in the art" as figures from science fiction who lack social skills. Jacob LJ, will think me less than supportive of the development of the language of the law but I do respectfully prefer, for its clarity, Lord Reid's terminology cited at paragraph 7 of the judgment.
In fact, nerds often dispute among themselves the relationship of the "nerd" to the "geek." Some view the geek as a less technically skilled nerd, although some factions maintain that "nerds" are both technically skilled and socially competent, whereas "geeks" are only technically skilled, and socially incompetent. Still other nerds call themselves "geeks" with pride, in much the same way as is done with "nerd."

There may also be some regional differences in the use of the words "nerd" and "geek". Some claim that on the North American East coast the word "nerd" is preferred to "geek", and the meanings of the words are switched. Others on the east coast dispute this, claiming that they have always found "nerd" used disparagingly (and "geek" used in a positive light). In Britain, the same tends to apply - 'nerd' is more offensive than 'geek', which is often affectionate.

Can you pass "The Nerdity Test?"

Thank Goodness It's Friday,

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November 05, 2004 3:44 PM  
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