by Dennis Crouch
Berkely Center for Law & Technology is hosting a great half-day virtual-conference this week: “AI as an Inventing Tool – it’s Implications for Patent Law” organized by Prof. Rob Merges, Dr. Yuan Hao (PhD), and Prof. Colleen Chien.
Details:
- FREE, but please register: https://www.law.berkeley.edu/research/bclt/bcltevents/2023-asiaip-aitool/
- 1:00 – 4:30 PACIFIC TIME.
I’ll be there participating along with a great set of academics, government officials, law practice leaders, and tech developers. Hope to see you online!
In a recent talk about the Future of IP, I noted that I have never been comfortable with the Winslow Tableau. The basic idea from this old CCPA case is that we assume that the PHOSITA is sitting in his shop with all the relevant prior art posted to the wall.
We think the proper way to apply the 103 obviousness test to a case like this is to first picture the inventor as working in his shop with the prior art references — which he is presumed to know — hanging on the walls around him.
Application of Winslow, 365 F.2d 1017 (C.C.P.A. 1966). The Winslow Tableau presents an unrealistic conception of the PHOSITA possessing encyclopedic knowledge of all prior art. As Judge Rich described, the PHOSITA is envisioned sitting in a shop with all relevant references figuratively hanging on the walls around him, available for mental combination. While a useful thought experiment, this assumption of comprehensive awareness of the state of the art has always been out of touch with how ordinary creation truly occurs. However, recent advances in AI provide a more natural model for the hypothetical PHOSITA. Importantly, LLMs know the references and have their key points accessible for dynamic consideration and analysis.
And, although AI may be an automated system, its responses are closer to the “common sense” reasoning suggested by Chief Justice Roberts in KSR rather than the discarded “automaton” approach.
With these new models, Winslow is suddenly less ridiculous and instead much more prescient. It is then interesting to think about whether the level of skill in the art is changed by the addition of AI. One way to answer this is ‘no’ – AI does not change the level of skill in the art in any legal sense. Rather, its addition changes the potential creation methodology to no match the level of skill already required in cases like Winslow. The legal fiction is becoming reality.
I don’t think there is systemic corruption in the patent system, or the legal system for that matter. Two out of 10 people are no dam n good & that applies across every walk of life. That means another two are really great people- while the rest of us muddle thru.
It’s actually the antipode with Alice: CAFC is looking at district court reasoning and not finding problem with it, because Alice is basically a Rorschach test with no wrong answers. The appeals court is assuming the good faith of district judges to put something reasonable on paper, because that’s all Alice requires.
It’s not corruption, it’s confusion. Coherent answers about how to deal with useful information in the patent context are not currently found in the statues or common law, so everyone is just knowing it when they see it, and from an appellate standpoint, the only issue is did they actually look at it.
Credit where credit is due:
You are closer to the path with recognizing the lack of systemic corruption in the patent system.
At least you haven’t drunk that “0h N0es, Tr011s” koolaid.
I think again that is largely correct Martin except I do think that the judges have been selected based on their anti-patent biases.
But your point is good in that an appellant court can’t find clear error when Alice/Mayo are so broad that they can fairly invalidate any claim.
So, I think Jason should revise his paper based on those two points.
1) Alice/Mayo are so broad that no appellant court could find clear error as Alice/Mayo enable a court to find any patent claim invalid under 101.
2) The measure of unpredictability should be a survey of practitioners before the judges have decided whether to invalidate the claims under 101.
The fact that Jason will never address these issues–in my opinion–makes him suspect.
Using foreign war as a distraction — a power grab IN the US (under the sheep skin of equity – go figure) is in play RIGHT NOW
See: link to open.spotify.com
Even – or perhaps more accurately, especially – sarah should be alarmed by the massive authoritarian power grab therein.
The power because of “disparate impact.” Just so outrageous.
Martin says it exactly right below about the article on 101 and dissents/reversals.
The fact that once a judicial proceeding decides your claims are invalid under 101 and the other judicial agree does not mean there is predictability in determining whether the claims are valid or not.
It only means that like bad cops the courts are backing each other up.
I think it is a strong sign that Jason is getting money for his publications or, in general, has been getting money from the anti-patent crowd since he doesn’t want to engage in discussions about his posts.
Dennis should be ashamed of himself for creating a portal for propaganda from the corporations. Not an academic but a state actor (run by the corporations) pushing propaganda.
In this case, I think to determine whether there is a predictability problem one would sample claims that had been asserted but no ruling on 101 had been given yet. Ask litigators and prosecutors whether the claims would stand up under 101 or not and see how it compares to the corrupt courts rulings. That should have been part of the paper.
As it is, the paper show nothing but that we are dealing with a bunch of corrupt cops who when one beats an innocent citizen the others back him or her up.
Anyway, just reality.
It is no coincidence that opposing viewpoints on the nominally “let’s be inclusive” Sprint Left speakers are not allowed.
This is well-covered by Dr. Lyndsay.
“Not an academic but a state actor (run by the corporations) pushing propaganda.”
It’s even more impossible to believe you are an actual lawyer than it is to believe that anon is.
“As it is, the paper show nothing but that we are dealing with a bunch of corrupt cops who when one beats an innocent citizen the others back him or her up.”
Golly gee, from what I see and hear 99.9999999% of cops are all pure as the driven snow and it’s just the “few bad apples” that spoil the whole bunch. Are you telling me that it isn’t so?
Lulz
Smelly – you are straying into religio/philosio/politics and you alignment with Malcolm is showing.
Easy way to tell marty is not in his usual place (the tall weeds):
Malcolm disagrees with him.
Given how often marty IS in the weeds, that’s definitely an indictment of Malcolm.
Re “The Predictability of the Mayo/Alice Framework – A New Empirical Perspective, November 15, 202 by Jason Rantanen and Nikola Datzov” in the following blog.
This statistical study of all Fed. Cir. Alice-Mayo [101] affirmance v. reversal decisions reports surprisingly high affirmances and low numbers of split decisions arguing against greater unpredictability for such decisions.
This article is liable to have a strong political impact on some of the draft legislation on this subject. It also supports arguments that too many patent suits have been brought on patent claims that the attorneys should have predicted in advance were in serious danger of promptly losing on “unpatentable subject matter” grounds. [However, there are still going to be tough close questions on this issue.]
PM: “ [However, there are still going to be tough close questions on this issue.]”
As the authors are surely aware, this is true for every part of the patent statue (including the parts where there is less predictability than 101).
Paul ADDS to the cacophony…
And says the quiet part out loud with “liable to have a strong political impact” as THAT is the intention of this bad academic propaganda.
As to: “supports arguments that too many patent suits have been brought on patent claims that the attorneys should have predicted in advance were in serious danger of promptly losing on “unpatentable subject matter” grounds.”
This is false.
The Supreme Court COULD have announced a retro-active effect — at least ATTEMPTING to nullify the legislatively set existence and level of presumption of validity – but did not.
EVERY granted patent has a right to argue against what the Court has RE-written the legislative law of patent eligibility to be – as murky as the Court has written (given that it collides with its own writings).
STOP gaslighting.
P.S. Although it probably would not change the combined study results here, especially since there are far more Alice than Mayo type decisions, I do think it should be noted that Alice and Mayo are based on two quite different Sup. Ct. imposed unpatentable subject matter grounds.
Correct. Always worth reminding people that eligibility issues come in different flavors.
No comment allowed on the Alice study?
Well anyway, I think the authors prove too much: ultra high affirmance rates and ultra low findings of error really predict one thing especially- a rubber stamp.
When the emperor has no clothes, all the reviews sound alike.
Seems like you read a different article. The point of this article is that the people who are complaining about how “unpredictable” and “confusing” 101 case law is are either (1) confused themselves or (2) willfully deluded (putting it charitably here). Those people include some judges on the Federal Circuit. And we know how those judges came to fall into those categories: they swallowed too much of the relentless B.S. propaganda regarding 101 that’s been peddled here and elsewhere since Bilski.
The worst offenders of all, of course, are the jokers who have been trying to pretend that Diehr (a ridiculous logically incoherent decision if there ever was one) survives beyond its most trivial proposition, I.e., the eligibility status of a given element in a combination claim can not by itself determine whether the claim as a whole is eligible OR ineligible.
“The point of this article is that…”
Bzzzzt .
Wr0ng.
But you be you, Malcolm.
anon why is my facebook account attached to patentlyo
I know Dennis Crouch works for the USPTO. . This can’t be good advertisement especially with the fictional AI posts.
Wow! I agree with Martin 100%. I was going to write that comment Martin but you did it already.
Exactly right.
If someone patents a new AI,
and the patent is challenged in an IPR,
will the AI be allowed to defend itself?
Do AIs need their own Bill of Rights?
Maybe someone can ask an AI.
LFMO.
Please Pardon Potential rePeat (again nabbed)…
Yeah,….
While perhaps the comment is meant to be in jest (and light), it is instead unhelpful to confuse and conflate OTHER human-like aspects (which more speaks to the event of The Singularity) with the PRESENT aspects impacting patent law considerations.
As has been noted previously, one simply does not need The Singularity to occur for the patent aspects to be present.
Let’s keep focused, folks.
There is a clear lack of understanding of what is being measured being a retreat from the reach of what SHOULD be able to be protected.
At the end of the day, us practitioners heed the direction of clients, and most clients do NOT have the endless dollars to chase what rightfully belongs to them.
Get out of that Ivory Tower.
The hilarious (and yet also sad) part of this “computers are more powerful this year!” hyperventilating is how readily the patent maximalist crowd (except for one or two certifiable mental cases) has completely dropped all pretext of pretending that ordinary skilled human beings can deduce the novel physical structures and/or electronic states that are responsible for the “new” bit-crunching “functionalities” of so-called “AI” (LOL) machines.
Does the PTO have anything resembling a coherent plan to address the ongoing farce of claiming logic and functionality “on a computer” as the current miserable paradigm inevitably sails over the cliff?
Is the typical “AI”-related “invention” being published and granted at the PTO these days any different than the typical “do it on a computer” “invention” from 15 years ago? I assume the answer is “no” and most “inventions” are along the lines of “use a computer oops I mean AI in this business context that takes advantage of the computer’s oops I mean AI’s power.”
Are you using any of the innovations from the computing arts from Over the past 15 years?
Please stop (you know, to be logically consistent) and that way, maybe – just maybe – the ultra high level of your cognitive dissonance might go down.
This is a sobering question if AI will raise the unobviousness level of 103 for the POSITA?* If so, corollary questions could be whether or not AI makes the “non-analogous art” argument and “motivation to combine” arguments weaker?
*Is this assuming an AI system with all patent and publication texts in its database?
P.S. I read recently that large scale use of AI with big data bases will consume large amounts of electricity. ?
The comment below makes a good point that: “the questions of whether one of ordinary skill in the art has 1) a reason to try to modify/combine the prior art and 2) the ability to successfully make those modifications/combinations, are separate. They are not the same question.” AI could suggest more or even better prior art to combine to meet a claim limitation, but whether or not that prior art combination was likely to be feasible, or technically succeed, or motivate such combination, involves very different evidence if not taught in the prior art itself.
Right. In the so-called “unpredictable” arts the standard is that there must be a reasonable expectation of success.
In that regard, we could consider one example: a new engineered protein (e.g., an antibody). If a computer can be used to accurately predict tertiary structure (and the functionality flowing from that structure) from a primary structure (i.e., the amino acid sequence) IN NEARLY ALL CASES then the art loses its “unpredictable” status. That era has been on the distant horizon but steadily approaching for quite some time.
“That era has been on the distant horizon but steadily approaching for quite some time.”
akin to, oooh, ‘growing up.’
+1 to Paul.
“It is then interesting to think about whether the level of skill in the art is changed by the addition of AI. One way to answer this is ‘no’ – AI does not change the level of skill in the art in any legal sense. Rather, its addition changes the potential creation methodology to no match the level of skill already required in cases like Winslow. The legal fiction is becoming reality.”
I disagree. The “level of ordinary skill” is a question that deals with what people with no creativity can do with all of the knowledge they have. (Yes, I know J. Kennedy’s law clerk who wrote KSR talked about “ordinary creativity” but “ordinary creativity” is really nothing more than “can apply known solutions to known problems.” Nothing “creative” in that “skill” at all.)
AI can certainly “suggest” many modifications and/or combinations. An infinite number of modifications and/or combinations theoretically. However, whether one of ordinary skill in the art has the “skill” necessary to actually achieve those combinations, i.e., has a reasonable expectation of success, is another question altogether. In that sense, AI adds nothing to “the level of ordinary skill.” As was pointed out a few topics earlier, the questions of whether one of ordinary skill in the art has 1) a reason to try to modify/combine the prior art and 2) the ability to successfully make those modifications/combinations are separate. They are not the same question. AI may “add something” to the process of answering the first question, but it adds nothing to the process of answering the second question.
Why? Because AI has no “creativity,” just like the hypothetical person of ordinary skill. It is those of extraordinary skill that can answer the second question. We call those people of extraordinary skill in the art inventors.
“AI may “add something” to the process of answering the first question, but it adds nothing to the process of answering the second question.”
Except for the fact that Big Pharma executives have already stated otherwise in public discourses (through government sponsored meetings on AI) earlier this year.
“Why? Because AI has no “creativity,” just like the hypothetical person of ordinary skill.”
Again wr0ng – the ‘generative’ part (sometimes leading to ‘hallucinations,’ sometimes not) IS evidence of creativity.
You are only showing that you do not understand the technology at hand.
Sorry folks – I have been correct for years now on where the AI discussion should be focused. You may not like it. But clinging to those feelings will only stymie us from where we need to be.
“…the ‘generative’ part (sometimes leading to ‘hallucinations,’ sometimes not) IS evidence of creativity.”
Disagree. Telling some AI to consider all possible modifications/combinations within its knowledge is not creative, it is instruction. Following instructions is not creative.
Please Pardon Potential rePeat (filter is nabbing)…
Your comment is awaiting moderation.
November 14, 2023 at 10:55 am
Again – you are only showing that you do not understand the tech.
Well, if a bunch of pharma execs “stated” that AI is “creative” I guess that establishes it 100% incontrovertibly true.
You gotta be the worst lawyer in the world.
Well, Smelly, you are quite evidently far worse than I as a lawyer.
You have blown right through the direct statements of, “you do not understand the tech,” and singly depend on an unequivocal statement (as if that statement must be wrong… because of how you feel).
Have you even bothered playing around with ANY of the now hundreds of generative AI apps out there?
Perhaps you might choose to stick to something that you actually know about, eh?
“Except for the fact that Big Pharma executives have already stated otherwise…”
Oooh! I’m so ascared!
You’re a cl0wn.
The fact! Wow!
lulz
Way to double down and go ONLY for the Big Pharma aspect…
Smelly, you align with Poopy when you act like this.
Breeze: “You [anon] gotta be the worst lawyer in the world.”
One of the worst. He’s also a rotten human being, specifically one of those clinically ill truth-avoiding deluded narcissists that the Internet propagates like a fungus.
^^^ lol, and there is the alignment, (as if Malcolm’s
A
O
O
T
W
M
I (s)
isn’t tritely relied on with his assertion that I am somehow a rotten human being as I am pro-patent (and not so impaired with cognitive dissonance as he is…)
Say “la vee”
In other to be “the worst lawyer,” one must first be a lawyer. What is the evidence for the proposition that anon is a lawyer? The claim does not pass the smell test.
As Greg I-use-my-real-name-except-when-I-don’t DeLassus has averted that he has blocked and cannot even see my and Malcolm’s posts, and as Smelly did not reference me, how is it that Greg (errantly) calls me out?
Hint:
He is a
L
I
A
R
Crouch very well knows that I am an attorney with a USPTO registration number (from past “let’s be civil tangles with Malcolm), so allowing Greg to continue to
L
I
E
can only be viewed as complicity.
Not a good look.
“ allowing Greg to continue to
L
I
E can only be viewed as complicity.”
Sounds like you have a solid defamation case here! Wiper can help you with the details.
LOL
I will kindly ask you to not attempt to put words in my mouth and will let Night Writer own his own arguments.
That being said, my post is a bit more nuanced (and you may well not grok the underlying legal concept), but Crouch should, given his editorial control on content and his own professed (albeit no longer easy to locate) posting rules, as well as his past, present, and continuing deletion of certain posts.
Registration numbers are handed out to non-lawyers. Try again.
I remember that! The “stakeholders “ complained the registration exam was too hard so they said why can’t everybody be registered? I think it was during the Clinton administration.
My pal Shifty SHOULD know better, from her perch as a retired USPTO employee, as the statement of:
“Registration numbers are handed out to non-lawyers. Try again.”
carries a FALSE implication.
My statement remains correct, as I state BOTH the affirmation as attorney AND having a registration number – AND that Prof. Crouch is well aware of this.
Shifty should recognize that the USPTO’s own published list of registration numbers also identifies if that registration number is associated with a patent agent or a patent attorney.
While listing as a patent agent may have a certain categorical error (not every past agent updates the status to patent attorney upon passing a state bar, even as they should), the listing as attorney can only occur WITH the passing of a state bar.
That Shifty attempts this, while certainly SHOULD knowing better indicates that Shifty is only (yet again) 0bsess1ng over me.
Prove it.
Pardon Potential rePeat (hitting filter)…
Your comment is awaiting moderation.
November 17, 2023 at 7:18 am
Shifty,
Really? Are you not aware of what your former employer has provided (for several decades now)?
Try: link to oedci.uspto.gov
Look at the last column.
By the by, Shifty, you forgot to switch over to your S. Morse persona in challenging me to ‘prove it.’
Oopsie for you.
That’s your proof, Snowflake? Do you even know any lawyers?
You know Snowflake got so confused he once called himself a liar. Lighten up.
Very much proof enough, Shifty.
That you seem unable to admit the obvious, but instead choose to instead post a known false position that earns me coin, is well (I guess), something that I can Thank You for ($$).
¯\_(ツ)_/¯
Do you think Snowflake knows any lawyers? Or used to work for one?
Shifty,
Just to whom are you addressing your rather inane (given the facts presented) question to?
What point are you trying to make?
Could be. Maybe used to work for one.
How come he answers to Snowflake?
Oooh, perhaps your choices in continuing your 0bsess10n with me generates coin for me…!
Thank$$$$
… but Shifty, have you bothered (at all) with the immediate point at hand and checked the proof that you requested?
It seems a bit disingenuous of you to not at least acknowledge that the proof you so earnestly wanted has been provided to you.
Based on the evidence, he never even worked for any US lawyer.
Not a lawyer? Damn. He can lie as much as he wants.
Shifty – try to stick to the point at hand (even as you choose to post to yourself).
Did you see his “proof.?” So sad.
Ah, the old game of not giving credit (as the proof asked for – and delivered – is conclusive to what that proof was requested for AND shows Shifty to only be 0bsessed with me).
Just above at link to patentlyo.com
Thank$$ Shifty (multiplier in effect from your choices)
Snowflake is stuck in a loop and repeating himself again. Sad. Ok we’re closing comments.
Thank you for your choice$$$, Shifty.