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July 7, 2005

A software patent puzzle (part 4)

This entry follows parts 1, 2, and 3.

John Koza claims that genetic programming is an automated invention machine. I think this is a reasonable way to think about genetic programming. But it is also accurate and helpful to think of genetic algorithms as tools that assist humans in the process of inventing. If you imagine a continuum of invention automation tools, ranging from a sharp stone on one end to a "genie in a box" on the other end, genetic algorithms are much closer to the genie than the stone. But they still require human input and manipulation to generate inventions.

As a result, genetic algorithms effectively boost the "inventing power" of the people who use them. Something that many people at last week's GECCO and NASA conferences told me was that genetic algorithms are making it possible for people with less and less knowledge and skill in a particular field to produce new inventions in that field. For example, an engineer with a bachelor's degree and a genetic algorithm might be able to match the inventing prowess of an engineer with a Ph.D. without a genetic algorithm. The Ph.D. engineer could, of course, use the same genetic algorithm to boost his own inventive performance. A genetic algorithm on everyone's desktop would, in effect, raise the level of skill of everyone in the field, if "skill" is measured by the ability to produce inventions.

What does this mean for our hypothetical "person having ordinary skill in the art" (PHOSITA)? From the perspective of public policy, I think the right outcome is to increasingly assume that PHOSITA has access to genetic algorithms and the knowledge of how to use them, as such access and knowledge become increasingly common in the real world. PHOSITA's exact degree of access and knowledge will vary from case to case.

The logical consequence of this is that whether a particular invention is nonobvious should be determined by asking whether PHOSITA would have been able to generate the invention by applying ordinary skill to a genetic algorithm, even if the resulting invention would have been surprising or unexpected to PHOSITA. This is consistent with the underlying purpose of the novelty and nonobviousness requirements, namely to issue patents "only for those literally new solutions that are beyond the grasp of the ordinary artisan who had a full understanding of the pertinent prior art." Chisum on Patents, 5.01 (emphasis added). What interest does the public have in granting patents on inventions that could be produced by anyone with ordinary skill and access to a generally-known genetic algorithm? As artificial creativity software continues to effectively increase the level of ordinary skill in various arts, the law should assume an increased level of skill on the part of PHOSITA for purposes of determining whether an invention is nonobvious.

What is interesting is that genetic algorithms and other forms of artificial creativity raise difficult questions about what is meant by phrases such as "beyond the grasp"? Does this mean "beyond the mental grasp" in the sense that PHOSITA would not have conceived of the invention based on his knowledge and skill, or "beyond the practical grasp" in the sense that PHOSITA would not have generated the invention by applying his knowledge and skill to the tools (including genetic algorithsm) at his disposal?

I can think of precedent in the U.S. that supports both of these interpretations. Therefore I am only arguing here for what I believe is the right outcome from a public policy perspective, not what I think the current state of the law actually is. I plan to research the law on this point in more detail and to publish my conclusions at a later date.

Posted by Robert at July 7, 2005 8:58 AM
category: Software Patents

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