Everything is Obvious

61 Pages Posted: 23 Oct 2017 Last revised: 21 Sep 2018

See all articles by Ryan Abbott

Ryan Abbott

University of Surrey School of Law; University of California, Los Angeles - David Geffen School of Medicine

Date Written: October 22, 2017

Abstract

For more than sixty years, “obviousness” has set the bar for patentability. Under this standard, if a hypothetical person having ordinary skill in the art would find an invention obvious in light of existing relevant information, then the invention cannot be patented. This skilled person is defined as a non-innovative worker with a limited knowledge-base. The more creative and informed the skilled person, the more likely an invention will be considered obvious. The standard has evolved since its introduction, and it is now on the verge of an evolutionary leap: Inventive machines are increasingly being used in research, and once the use of such machines becomes standard, the person skilled in the art should be a person using an inventive machine, or just an inventive machine. Unlike the skilled person, the inventive machine is capable of innovation and considering the entire universe of prior art. As inventive machines continue to improve, this will increasingly raise the bar to patentability, eventually rendering innovative activities obvious. The end of obviousness means the end of patents, at least as they are now.

Keywords: Patents, Intellectual Property, Robot, Artificial Intelligence, Machine Learning, Nonobviousness, Autonomous, Law and Technology

Suggested Citation

Abbott, Ryan Benjamin, Everything is Obvious (October 22, 2017). UCLA Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3056915 or http://dx.doi.org/10.2139/ssrn.3056915

Ryan Benjamin Abbott (Contact Author)

University of Surrey School of Law ( email )

Guildford
Guildford, Surrey GU2 5XH
United Kingdom

University of California, Los Angeles - David Geffen School of Medicine ( email )

1000 Veteran Avenue, Box 956939
Los Angeles, CA 90095-6939
United States

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