Why change the wording?
In the age of gender-neutral language, Germany's patent community faces a problem unique to the German language: the term "person skilled in the art", which poses no linguistic problem at all in the English-speaking world, has had its equivalent in the word "Fachmann" (ie, "skilled man") for decades.
In the German Patent Act, the term "Fachmann" is used primarily in section 4 to define inventiveness. Notably, this wording was not changed in the amendment resulting from the Second Act of the Simplification and Modernisation of German Patent Law that entered into force on 18 August 2021. The German version of the Guidelines for Examination of the EPO also uses the term "Fachmann", while the English version reads "person skilled in the art".
For many German native speakers, the gender-neutral term "Fachperson" sounds artificial, unfamiliar and somehow awkward. Consequently, most attorneys and judges still use the term "Fachmann".
In 2018, the European Parliament issued guidelines entitled "Gender-neutral language in the European Parliament", page 3 of which provides the following definition of gender neutrality in language:
Gender-neutral language is a generic term covering the use of non-sexist language, inclusive language or gender-fair language. The purpose of gender-neutral language is to avoid word choices which may be interpreted as biased, discriminatory or demeaning by implying that one sex or social gender is the norm. Using gender-fair and inclusive language also helps reduce gender stereotyping, promotes social change and contributes to achieving gender equality.
Gender-neutral or gender-inclusive language is more than a matter of political correctness. Language powerfully reflects and influences attitudes, behaviour and perceptions. In order to treat all genders equally, efforts have been employed since the 1980s to propose a gender-neutral/gender-fair/non-sexist use of language, so that no gender is privileged, and prejudices against any gender are not perpetuated.
As part of those efforts, over the last decade, numerous guidelines have been developed and implemented at international and national level. International and European institutions (such as the United Nations, the World Health Organisation, the International Labour Organisation, the European Parliament and the European Commission), professional associations, universities, major news agencies and publications have adopted guidelines for the non-sexist use of language, either as separate documents or as specific recommendations included in their style guides. In the European Union, many Member States have also debated language policies and proposed such guidelines at various levels.
In short, attempting to establish a gender-neutral language contributes to a European effort to overcome gender stereotypes.
Or, as the United Nation puts it:
Using gender-inclusive language means speaking and writing in a way that does not discriminate against a particular sex, social gender or gender identity, and does not perpetuate gender stereotypes. Given the key role of language in shaping cultural and social attitudes, using gender-inclusive language is a powerful way to promote gender equality and eradicate gender bias.
As the person skilled in the art is a mere legal concept, it is not apparent why it should have a gender at all. Thus, despite being unfamiliar, it seems "Fachperson" would be a good choice for the German patent community.
Further, case law suggests that is possible to use the term "Fachperson": both the German Federal Patent Court (BPatG) and the German Federal Supreme Court (BGH) have issued a few decisions where the term "Fachmann" has disappeared in favour of the term "Fachperson".(1)
Language in general is alive, and shifts and evolves as the context in which it is used changes. Terms such as "computer" or "telephone", which are now part of everyday vocabulary, would have been unthinkable 200 years ago. Thus, it seems there would be no reason not to establish the natural use of the term "Fachperson", rendering "Fachmann" the outdated term.
For further information on this topic please contact Sabine Koch at Grünecker by telephone (+49 89 21 23 50) or email ([email protected]). The Grünecker website can be accessed at grunecker.de.
- BPatG decision 9 W (pat) 55/19, dated 10 November 2021;
- BGH decisions:
- 28 January 2021 - X ZR 178/18;
- 17 December 2020 - X ZR 15/19; and
- 26 January 2016 – II ZR 394/13.