Taking Artificial Intelligence Beyond the Turing Test

Abstract

Patentability under the 35 U.S.C. § 103 obviousness standard relies on the ability of a person having ordinary skill in the art; however, the involvement of artificial intelligence in the inventive process challenges that standard. A misconception of the current capabilities of AI leads to arguments of universal obviousness where an independent and creative AI dominates the inventive process. Fortunately, AI of such a caliber does not yet exist. Thus, the difficulty of defining the inventive entity threatens patent protection’s incentive to innovate but need not extinguish the right to patentability outright. Redefining the standard of obviousness and distinguishing the user’s contributions enable the patentability of inventions resulting from the use of AI as an innovative tool. The proposed standard for the obviousness inquiry—a person having ordinary skill in AI—accounts for the inventor’s objectives, access to big and deep data, and knowledge of the existing datasets to control the form and operation of the machine learning resulting in AI-assisted inventions. Preexisting common law for patenting chemical compounds and the evolution of the obviousness test permit shifting the standard to overcome the statutory hurdles facing the patentability of AI-assisted inventions. However, shifting the level of ordinary skill in the art to the user does not permit the patentability of independent and autonomous inventions by inventive AI systems. The standard proposed here turns on the effort exerted by the inventor in comparison to the AI system. The inventor’s control and design of the inventive process help to resolve the level of ordinary skill in the art for AI-assisted inventions by looking at the user’s starting point, motivation based on the prior art and data, reasonable expectation of success, and control over the inventive process. Thus, the user’s control defines the level of ordinary skill in the art and enables the trier of fact to refer to its established inquiries in determining obviousness.