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Patents - POSITA ('Person of skill in the art'). Munchkin, Inc. v. Angelcare Canada Inc.
In Munchkin, Inc. v. Angelcare Canada Inc. (Fed CA, 2024) the Federal Court of Appeal assesses "patent infringement and patent validity" issues.
Here the court considers 'POSITA' ['person of skill in the art'], as a concept in patent interpretation:[15] Patents are to be read and construed from the point of view of the person of skill in the relevant art (POSITA), including all of the common general knowledge (CGK) that person has. This knowledge is relevant to the construction of the patent claims in issue, as well as to whether those claims meet certain requirements for validity.
[16] Munchkin does not take issue with the Federal Court’s discussion of the POSITA, including the statement at paragraph 376 of the Decision that, even though they are not inventive, they are "“reasonably diligent in keeping up to date with the diaper cassette market.”" This description is consistent with the guidance of the Supreme Court of Canada in Whirlpool Corp. v. Camco Inc., 2000 SCC 67, [2000] 2 S.C.R. 1067 at para. 74.
[17] Munchkin also does not take issue with the following definition of the CGK by the Federal Court at paragraph 86 of the Decision, with which I agree:The [CGK] is the technical knowledge that was generally known by the POSITA, as defined, at the relevant time in the field of art or science to which the patent relates (Apotex Inc v Sanofi-Synthelabo Canada, 2008 SCC 61, [2008] 3 SCR 265 [Sanofi] at para 37). It is only a subset of the state of the art generally and does not include all the information in the public domain (Ibid; Hospira [Healthcare Corporation v. Kennedy Trust for Rheumatology Research, 2020 FCA 30], para 84). It is also defined in relation with the POSITA because it constitutes the knowledge of the skilled person at the time. Fox on [the Canadian Law of Patents, 5th ed. (Toronto: Thompson Reuters, 2019) (loose-leaf updated 2020-6)] describes it as including “what the person may reasonably be expected to know and to be able to find out. It is all the knowledge which is generally known and generally regarded as a good basis for further action by the bulk of those engaged in the field to which the invention relates” (#4:14 - (b)).
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