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AI as an Inventing Software

2 min read

by Dennis Crouch

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


I’ll be there collaborating together with a terrific set of teachers, authorities officers, legislation follow 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 comfy with the Winslow Tableau. The fundamental concept from this outdated CCPA case is that we assume that the PHOSITA is sitting in his store with all of the related prior artwork posted to the wall.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 predict the right approach to apply the 103 obviousness check 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 information of all prior artwork. As Decide Wealthy described, the PHOSITA is envisioned sitting in a store with all related references figuratively hanging on the partitions round him, out there for psychological mixture. Whereas a helpful thought experiment, this assumption of complete consciousness of the cutting-edge has all the time been out of contact with how strange creation really 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 steered by Chief Justice Roberts in KSR reasonably than the discarded “automaton” method.

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


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