From the PHOSITA to the MOSITA - Will 'Secondary Considerations' Save Pharmaceutical Patents From Artificial Intelligence?
52 International Review of Intellectual Property and Competition Law 2020
31 Pages Posted: 1 Jul 2020
Date Written: February 9, 2020
Artificial intelligence systems are being increasingly employed in pharmaceutical R&D to develop new drugs and medical treatments. In such a scenario, the patentability of new pharmaceutical inventions seems more and more problematic, given that the computational power of AIs increases the likelihood that a new chemical composition is deemed to be obvious. In this article I argue that with the advent of AI- generated inventions both EU and US patent law cannot rely exclusively on the traditional standard of the “person having ordinary skill in the art” to evaluate the non-obviousness condition of patentability. However, I also maintain that a legislative reform is not necessary. Rather, the judges should start to more strongly consider the so-called “secondary considerations” of non-obviousness that have been intermittently and inconsistently applied both in US and EU case-law.
Keywords: Artificial Intelligence; Patent law; Pharmaceutical Patents; Non-obviousness; Inventive-Step; Big data
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