The Non-obvious Razor & Generative AI

Abstract

This article examines the challenges and prospects of crowd-sourcing generative AI systems (“GenAI”) in patent law as human and machine creativity become seamless. As GenAI technology like ChatGPT-4 become ubiquitous, AI-generated solutions will be less innovative and will complicate tenets about patentability. An evolution of patent law’s non-obviousness standard provides an elegant solution - borrowing from philosophy, a “razor” - to addressing the impact of advanced AI in the innovation process.

This article’s thesis is distinct from the USPTO's emphasis on whether or not AI systems can be inventors, because it assumes that human and artificial creativity will become indistinguishable. This article focuses on a reevaluation of utility patent law's non-obviousness standard in light of the steady societal shift toward broad information and technological empowerment. By exploring GenAI's role in augmenting creativity and its implications for the standard of "ordinary creativity," this article suggests factors for a revised patentability examination methodology.

This reevaluation seeks to balance AI's rapid advances with patent law's goals to promote progress. There is precedent for the non-obviousness standard to absorb advancements in artificial intelligence that rely on crowd-sourced information. GenAI challenges traditional notions of invention and creativity. The legal construct against which “non-obviousness” is determined - the ordinary creativity of the "person of ordinary skill in the art" (PHOSITA) - should be recalibrated to account for GenAI and to encourage innovation while protecting public access to tools of creativity.

Keywords: GenAI technology, ChatGPT-4, crowd-sourcing generative AI systems, patent law, generative AI