Computational Experimentation

60 Pages Posted: 15 May 2019 Last revised: 18 May 2020

Date Written: April 10, 2019

Abstract

Experimentation conjures images of laboratories and equipment in biotechnology, chemistry, materials science, and pharmaceuticals. Yet modern day experimentation is not limited to only chemical synthesis, but is increasingly computational. Researchers in the unpredictable arts can experiment upon the functions, properties, reactions, and structures of chemical compounds with highly accurate computational techniques. These computational capabilities challenge the enablement and utility patentability requirements. The patent statute requires that the inventor explain how to make and use the invention without undue experimentation and that the invention have at least substantial and specific utility. These patentability requirements do not align with computational research capabilities, which allow inventors to file earlier patent applications, develop prophetic examples, and provide supporting disclosure in the patent specification without necessarily conducting traditional, laboratory-based experiments. This Article explores the contours and applications of computational capabilities on patentability, proposes reforms to the utility doctrine and to patent examination, responds to potential critiques of the proposed reforms, and analyzes innovation policy in the unpredictable arts. In light of increasing computational experimentation, this Article recommends strengthening the utility requirement in order to prevent a state of patent law in which enablement is subsumed into utility.

Keywords: patent law, patentability, enablement, utility, computation, computational, molecular dynamics simulations, machine learning, deep learning, undue experimentation, unpredictable arts, biotechnology, chemistry, materials science, pharmaceuticals, laboratory, synthesis

JEL Classification: O34

Suggested Citation

Ebrahim, Tabrez, Computational Experimentation (April 10, 2019). Vanderbilt Journal of Entertainment & Technology Law, Vol. 21, 2019, Available at SSRN: https://ssrn.com/abstract=3369945 or http://dx.doi.org/10.2139/ssrn.3369945

Tabrez Ebrahim (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

HOME PAGE: http://https://law.lclark.edu/live/profiles/16710-tabrez-ebrahim

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