The art of writing is the art of discovering what you believe.
Gustave Flaubert

Thursday 4 July 2013


The IPKat drew attention in his review of my book to the omission of the word 'nerd'. In Rockwater v Technip [2004] EWCA Civ 381, a patent appeal case, it received consideration by Lords Justice Jacob and Pill. Jacob LJ used it as a synonym for a familiar figure in the patent world (at para 6-7):
The "man skilled in the art" is invoked at many critical points of patent law. The claims of a patent must be understood as if read by that notional man – in the hackneyed but convenient phrase the "court must don the mantle of the skilled man." Likewise many questions of validity (obviousness, and sufficiency for instance) depend upon trying to view matters as he would see them. He indeed has statutory recognition – Arts. 56, 83 and 100 of the EPC expressly refer to "the person skilled in the art."

It is settled that this man, if real, would be very boring – a nerd.
And in para 10 he went on:
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.
Then in the following paragraph he observed:
... 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.
Pill LJ was less adventurous.
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.
The IPKat noted that one noble judge has been heard to express the notion that the definition of 'nerd' is "the sort of person who looks up the word 'nerd' in a dictionary", which could be construed (but surely was not intended) as a harsh judgment on Pill LJ (and on me).

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