Invention automation has the potential to disrupt patent law in a variety of ways that patent attorneys need to know about.
By Robert Plotkin
First published 4/11/2017; YearOfDisruption.com; publisher: GiantPeople.
More and more frequently, software is being used to automate the process of conceiving of and designing new inventions. Humans, to be sure, still play a significant role in the inventive process and I find it more helpful to think about humans and computers as being collaborative partners in inventing than to think about software as replacing human inventors. But there is no doubt that computer automation is and, to an increasing extent will be, a game changer in the process of inventing.
I think this is such a significant development in the history of inventing that I wrote a book about this revolution in inventing: The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business (Stanford University Press 2009). By the time I finished the book, software had already played a significant role in inventing products ranging from toothbrushes to antennas to pharmaceuticals, and patents had been awarded on circuitry that had been designed almost entirely by software. Now almost ten years have passed and the pace of computerized inventing has accelerated as the result of exponentially more powerful hardware and long-awaited advances in artificial intelligence, such as deep learning.
Invention automation has the potential to disrupt patent law in a variety of ways that patent attorneys need to know about. For example:
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If an advance in invention automation makes it significantly easier to churn out new inventions, should those inventions be patentable? What standard of obviousness should be applied to such inventions? If computers find it easy to generate inventions of a certain type, should we adopt a “CHOSITA”—computer having ordinary skill in the art—standard for obviousness?
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Who qualifies as an inventor of an invention that has been designed using a substantial amount of computer automation? Is there any amount of computer automation that should disqualify all humans involved as inventors?
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Artificially-generated inventions can be difficult or even impossible for humans to understand. A NASA antenna that I described in The Genie in the Machine had a bizarre shape that looks like a crumpled-up paperclip. Although it can be shown, through testing, to work extremely well, the reasons why it works so well are not well-understood. How can an invention like this be described in a patent application in a way that satisfies the written description and enablement requirements, and that provides a scope of protection that is sufficiently broad to avoid design-arounds?
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If a client has developed invention automation technology that has the potential to generate a large number of inventions over an extended period of time, should you, as their patent attorney, advise them to patent the invention automation technology itself or to keep it as a trade secret? What about the inventions that such technology generates? And if you advise your client to keep the invention generation technology as a trade secret but to patent the inventions that it generates, what problems might this raise in connection with the written description and enablement requirements?
I’ve already had the good fortune to work through these issues with clients, which has been both exciting and nervewracking. Advising clients successfully on these kinds of issues requires a thorough understanding of patent law, the underlying technology, and—most importantly—a mind that is open to the disruptive implications of invention automation.
Attorney Robert Plotkin has been a leader in obtaining software patents for two decades, and consistently obtains software patents for clients even after the Alice Supreme Court decision stopped most companies from obtaining software patents. He uses his decades of legal and engineering experience to maximize the value of his clients’ patent portfolios – allowing them to realize the largest return on investment even in the post-Alice world. His clients have profitably sold and licensed the software patents he has obtained for them to major corporations worldwide.
