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Automating Invention is Robert Plotkin's blog on the impact of computer-automated inventing on the future of invention and patent law.

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July 7, 2005

A software patent puzzle (part 3)

I had an interesting discussion last week at the NASA Evolvable Hardware Conference with John Koza, Martin Keane, Matthew Streeter, Sameer Al-Sakran, and Lee Jones. We talked about the work they have been doing using genetic algorithms to re-create previously-patented inventions and to generate new patentable inventions. Keane, Koza, and Streeter were granted a U.S. Patent earlier this year on improved proportional, integrative, and derivative (PID) controllers (a kind of circuitry) that were generated using genetic algorithms.

Martin Keane posed a question that is essentially the next piece to parts 1 and 2 of this software patent puzzle. In those parts, I argued that whether an invention satisfies patent law's novelty or utility requirements should not depend on whether the invention is embodied in hardware or software, or on whether the invention was invented with the assistance of a computer.

Martin Keane's hypothetical addressed the third requirement for patentability: nonobviousness (or "inventive step"). If a human and a genetic algorithm independently generate the same invention at the same time, is it possible for the human-generated invention to be nonobvious and the computer-generated invention to be obvious?

My short answer is the same as for novelty and utility: no. Whether an invention is nonobvious shouldn't depend on how the invention was created. So either the human-generated and computer-generated invention are both nonobvious, or they are both obvious.

One reason for this (at least in the U.S.) is that the section of the patent statute that defines nonobviousness explicitly states that "[p]atentability shall not be negatived by the manner in which the invention was made." 35 U.S.C. 103(a).

But even if this sentence weren't in the statute, whether a particular invention (and I'm using the term "invention" here with its colloquial, rather than legal, meaning) is nonobvious at a particular point in time depends on whether the invention "would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." Id.. In other words, what is important is whether the invention would have been obvious to the hypothetical "person having ordinary skill in the art" (PHOSITA), not how the invention was actually invented in the real, non-hypothetical, world.

In summary, whether an invention is nonobvious shouldn't vary depending merely on whether the invention was invented using a genetic algorithm or some other kind of computer automation. The tougher question, in my view is: should computer-automated inventing have any impact on how the nonobviousness requirement is interpreted for all inventions, regardless of how they are actually invented in the real world? I will propose an answer to this question in the next entry in this series.

Posted by Robert at July 7, 2005 7:39 AM
category: Software Patents

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