Nonobviousness
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Everything is Obvious OR IS IT REALLY? Quick Takes on the USPTO's Questions About Artificial Intelligence The agency is anticipating the need to adjust some policies as more inventions are created (or at least assisted) by artificial... more
Everything is Obvious OR IS IT REALLY?
Quick Takes on the USPTO's Questions About Artificial Intelligence
The agency is anticipating the need to adjust some policies as more inventions are created (or at least assisted) by artificial intelligence. Here are two savvy practitioners' takes on four potential flash points.
Academics have been debating for a while whether machines can be inventors for the purposes of patent law. Earlier this month, University of Surrey IP professor Ryan Abbott and others upped the ante, forming the Artificial Inventor Project and filing patents around the world that list an AI machine as the inventor.
Everything is obvious
66 UCLA L. Rev. 2 (2018)
51 Pages Posted: 23 Oct 2017 Last revised: 16 Dec 2018
Ryan Abbott
University of Surrey School of Law; University of California, Los Angeles - David Geffen School of Medicine
Abstract
For more than sixty years, “obviousness” has set the bar for patentability. Under this standard, if a hypothetical “person having ordinary skill in the art” would find an invention obvious in light of existing relevant information, then the invention cannot be patented. This skilled person is defined as a non-innovative worker with a limited knowledge-base. The more creative and informed the skilled person, the more likely an invention will be considered obvious. The standard has evolved since its introduction, and it is now on the verge of an evolutionary leap: Inventive machines are increasingly being used in research, and once the use of such machines becomes standard, the person skilled in the art should be a person using an inventive machine, or just an inventive machine. Unlike the skilled person, the inventive machine is capable of innovation and considering the entire universe of prior art. As inventive machines continue to improve, this will increasingly raise the bar to patentability, eventually rendering innovative activities obvious. The end of obviousness means the end of patents, at least as they are now.
Keywords: Patents, Intellectual Property, Robot, Artificial Intelligence, Machine Learning, Nonobviousness, Autonomous, Law and Technology
Suggested Citation:
Abbott, Ryan Benjamin, Everything is Obvious. 66 UCLA L. Rev. 2 (2018). Available at SSRN: https://ssrn.com/abstract=3056915 or http://dx.doi.org/10.2139/ssrn.3056915
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3056915
Quick Takes on the USPTO's Questions About Artificial Intelligence
The agency is anticipating the need to adjust some policies as more inventions are created (or at least assisted) by artificial intelligence. Here are two savvy practitioners' takes on four potential flash points.
Academics have been debating for a while whether machines can be inventors for the purposes of patent law. Earlier this month, University of Surrey IP professor Ryan Abbott and others upped the ante, forming the Artificial Inventor Project and filing patents around the world that list an AI machine as the inventor.
Everything is obvious
66 UCLA L. Rev. 2 (2018)
51 Pages Posted: 23 Oct 2017 Last revised: 16 Dec 2018
Ryan Abbott
University of Surrey School of Law; University of California, Los Angeles - David Geffen School of Medicine
Abstract
For more than sixty years, “obviousness” has set the bar for patentability. Under this standard, if a hypothetical “person having ordinary skill in the art” would find an invention obvious in light of existing relevant information, then the invention cannot be patented. This skilled person is defined as a non-innovative worker with a limited knowledge-base. The more creative and informed the skilled person, the more likely an invention will be considered obvious. The standard has evolved since its introduction, and it is now on the verge of an evolutionary leap: Inventive machines are increasingly being used in research, and once the use of such machines becomes standard, the person skilled in the art should be a person using an inventive machine, or just an inventive machine. Unlike the skilled person, the inventive machine is capable of innovation and considering the entire universe of prior art. As inventive machines continue to improve, this will increasingly raise the bar to patentability, eventually rendering innovative activities obvious. The end of obviousness means the end of patents, at least as they are now.
Keywords: Patents, Intellectual Property, Robot, Artificial Intelligence, Machine Learning, Nonobviousness, Autonomous, Law and Technology
Suggested Citation:
Abbott, Ryan Benjamin, Everything is Obvious. 66 UCLA L. Rev. 2 (2018). Available at SSRN: https://ssrn.com/abstract=3056915 or http://dx.doi.org/10.2139/ssrn.3056915
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3056915
Business method patents require further litigation to answer many lingering questions. The decision of the United States Court of Appeals for the Federal Circuit in State Street Bank & Trust Co. v. Signature Financial Group, Inc.... more
Business method patents require further litigation to answer many lingering questions. The decision of the United States Court of Appeals for the Federal Circuit in State Street Bank & Trust Co. v. Signature Financial Group, Inc. eliminated the "business method" exception. The business method exception used a skeptical approach asking "why should a patent be granted." The skepticism inherent in this approach may explain why the doctrine was recognized for so many years.
Since the time of Hotel Security Checking Co. v. Lorraine Co., advances in the field of science and the advent of computers have forced courts to constantly rethink and rework their approaches to patent law. State Street marks the elimination of the business method exception as a per se ban on business method claims, but does not stand for the proposition that all business method claims will now be approved under section 101 of the Patent Act of 1952. Even if a claim clears either the novelty or nonobviousness hurdles to patentability, it still must fall under one of the subject-matter classes. For the time being, it appears that such claims will have higher probabilities of success if expressed through a computer program, which would provide the instrumentality by which the idea or system could reduce something to a different state. The shackles of the business method exception have been removed. How far the courts will now go in allowing business method claims is anyone's guess, but the current trend is definitely more pro-patent.
Since the time of Hotel Security Checking Co. v. Lorraine Co., advances in the field of science and the advent of computers have forced courts to constantly rethink and rework their approaches to patent law. State Street marks the elimination of the business method exception as a per se ban on business method claims, but does not stand for the proposition that all business method claims will now be approved under section 101 of the Patent Act of 1952. Even if a claim clears either the novelty or nonobviousness hurdles to patentability, it still must fall under one of the subject-matter classes. For the time being, it appears that such claims will have higher probabilities of success if expressed through a computer program, which would provide the instrumentality by which the idea or system could reduce something to a different state. The shackles of the business method exception have been removed. How far the courts will now go in allowing business method claims is anyone's guess, but the current trend is definitely more pro-patent.
This article analyzes the Innovation Act, which passed the U.S. House of Representatives on a promise to deal with the problem of "patent trolls" or non-practicing entities (NPEs). The article surveys the NPE controversy from a variety of... more
This article analyzes the Innovation Act, which passed the U.S. House of Representatives on a promise to deal with the problem of "patent trolls" or non-practicing entities (NPEs). The article surveys the NPE controversy from a variety of perspectives, including the history and theory of transactions in real property. Part II raises several economic issues relevant to the proposed NPE legislation, including the need for owners to alienate the legally-enforceable rights they acquire, and the dynamic benefits of property alienability notwithstanding short-term administrative costs. Part III describes a decade of reforms that led up to the Innovation Act, with a particular focus on critiques of patent enforcement in general and NPEs in particular. Part IV responds to these concerns by surveying legal doctrines that may blunt the allegedly adverse effects of patent litigation. The article concludes that current efforts may not be as beneficial to innovation as has been advertised. Recent interpretations of the Patent Act of 1952, including CLS Bank and KSR in particular, provide adequate tools with which the courts may address the alleged abuses by NPEs.