Blueshift IP co-founder and patent software expert Robert Plotkin recently authored an article for IPWatchdog about artificial intelligence’s potential to impact patent law’s nonobviousness requirement.
“Has the widespread adoption of AI tools fundamentally changed what constitutes ‘ordinary skill’…?,” Robert posits in the article. “This question resonates across the innovation landscape, as AI tools become standard equipment in research and development, revolutionizing how inventors approach problems and effectively raising the baseline capabilities of skilled practitioners. Patent law must adapt to this new reality, particularly in its concept of a ‘person having ordinary skill in the art’ (PHOSITA) – the cornerstone of patent law’s nonobviousness requirement.”
The piece goes on to explore how existing legal frameworks can adapt to accommodate the consideration of AI capabilities in assessing ordinary skill while also acknowledging challenges in implementing such changes, such as variation in access to AI tools among inventors.
Robert goes on to emphasize how the nonobviousness analysis should continue to prioritize the human element of inventorship, including human creativity, and how adjusting the PHOSITA standard to include AI capabilities should be balanced to ensure that the patent system remains accessible to inventors regardless of their resources.
He concludes by iterating that the integration of AI into patent law’s nonobviousness analysis is an ongoing process that requires careful consideration to uphold the patent system’s purpose of promoting innovation while adapting to technological advancements.
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