AI as an Inventing Device

by Dennis Crouch

Berkely Middle for Regulation & Know-how is internet hosting an important half-day virtual-conference this week: “AI as an Inventing Device – it’s Implications for Patent Regulation” organized by Prof. Rob Merges, Dr. Yuan Hao (PhD), and Prof. Colleen Chien.


I’ll be there collaborating together with an important set of teachers, authorities officers, legislation observe leaders, and tech builders.  Hope to see you on-line!

In a current speak concerning the Way forward for IP, I famous that I’ve by no means been snug with the Winslow Tableau. The essential thought from this outdated CCPA case is that we assume that the PHOSITA is sitting in his store with all of the related prior artwork posted to the wall.

We expect the right solution to apply the 103 obviousness take a look at to a case like that is to first image the inventor as working in his store with the prior artwork references — which he’s presumed to know — hanging on the partitions round him.

Software of Winslow, 365 F.2nd 1017 (C.C.P.A. 1966).  The Winslow Tableau presents an unrealistic conception of the PHOSITA possessing encyclopedic data of all prior artwork. As Choose Wealthy described, the PHOSITA is envisioned sitting in a store with all related references figuratively hanging on the partitions round him, obtainable for psychological mixture. Whereas a helpful thought experiment, this assumption of complete consciousness of the state-of-the-art has at all times been out of contact with how peculiar creation actually happens. Nonetheless, current advances in AI present a extra pure mannequin for the hypothetical PHOSITA.  Importantly, LLMs know the references and have their key factors accessible for dynamic consideration and evaluation.

And, though AI could also be an automatic system, its responses are nearer to the “widespread sense” reasoning urged by Chief Justice Roberts in KSR moderately than the discarded “automaton” strategy.

With these new fashions, Winslow is immediately much less ridiculous and as an alternative rather more prescient.  It’s then attention-grabbing to consider whether or not the extent of ability within the artwork is modified by the addition of AI.  One solution to reply that is ‘no’ – AI doesn’t change the extent of ability within the artwork in any authorized sense. Moderately, its addition modifications the potential creation methodology to no match the extent of ability already required in instances like Winslow.  The authorized fiction is changing into actuality.