Monday, December 05, 2016

PHOSITA, the Frankenstein from the US Supreme Court?

The 717Madison blog had a post mentioning the use of the word "Frankenstein" in oral argument at the CAFC.

That appellation goes back some time, and the first court "attacked" with this verbiage was the US Supreme Court:

Prior to the establishment of the U.S. Federal Circuit, Cryil A. Soans colorfully portrayed the Supreme Court's PHOSITA interpretation in a 1966 article as a Frankenstein monster created by the Supreme Court. This mythical character with supernatural power enabling him to know all of the tools and practices known to any and all persons working in his field anywhere in the U.S. and having all of the printed publications (in his field) in all libraries of the world. He can read all languages and can understand all that he reads and never forgets. In addition, he tests the claim of inventors when they apply for patents and when they try to enforce them. n27 These characteristics did not originate with Soans, but derived from the Supreme Court's ruling in Mast-Foos & Co. v Stover. n28

From the Rutgers Law Record, 2010-11 [ 38 Rutgers L. Rec. 1 ]

AND, in footnotes from JOLT [ 23 Harv. J. Law & Tec 227 ] :

n29 Cyril A. Soans coined the term PHOSITA fourteen years later in an article in which he discussed "Mr. Phosita," a personification of the hypothetical person having ordinary skill in the art. Cyril A. Soans, Some Absurd Presumptions in Patent Cases, 10 IDEA 433, 438-39 (1966) (offering an invective against the Court-created "superhuman Frankenstein monster Mr. Phosita," who had powers extending far beyond those of the ordinarily skilled artisan).

n30 The Federal Circuit adopted the term "PHOSITA" in 1984. See Kimberly-Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1454 n.5 (Fed. Cir. 1984) (discussing Soans's article). The term PHOSITA is now firmly established in patent law scholarship, although most recent allusions to "Mr. Phosita" have dropped the honorific "Mr." and placed the remaining acronym in all capital letters.

**Separately, the "Alice" decision invited other literary comparisons

from 98 JPTOS 374 (2016)
Lewis Carroll, Alice's Adventures in Wonderland 15 (The Macmillan Company 1920) (1898). Alice's exclamation of bewilderment at the confusing world in which she finds herself aptly captures the sentiment behind the Federal Circuit's attempts to make sense of the Supreme Court's unclear decision in Alice v. CLS Bank.

**And, from 46 U. Louisville L. Rev. 113 (2007) ,

And, on the more general side, recent scholarship has examined how mentions of Kafka appear in judicial opinions, though the purpose of this survey was primarily to demonstrate ways that judges have stylistically appealed to Kafka garnish their prose. See Parker B. Potter, Jr., Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka, 3 Pierce L. Rev. 195, 196 (2005).


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