The legal fiction of the “person skilled in the art” is at the core of patent law. It impacts both a patent’s validity and its scope of protection as determined in infringement proceedings. The advent of Artificial Intelligence (AI) technology challenges the legal fiction, handing the “person skilled in the art” a powerful tool to process the world’s information with unprecedented breadth and speed.
Humans & Machines
A skilled person is subject to the limitations of human thought and action – in particular, the skilled person lacks the attribute of omniscience. The skilled person has only average knowledge and skills and is only aware of what belongs to the generally accepted state of knowledge at a certain point in time – and even this knowledge is limited to a certain area of technology and includes, where appropriate, general knowledge of adjacent or overlapping areas of technology.
The linchpin for understanding the skilled person is therefore the general expertise and the specific knowledge of his or her field, augmented by easily obtainable tools of reference. Anything beyond these sources of knowledge is outside of the skilled person’s relevant expertise and remains unconsidered if the scope of assessment is defined by the “skilled person”.
Machines and “AI”: Tools or a new point of reference?
In the last decade, tools based on artificial intelligence, machine & deep learning or neural networks have made tremendous advancements in almost all areas of automated knowledge processing – including Intellectual Property and especially in patent law. As patent law seeks to incentivize technological advances, it aims to expand the body of humanity’s shared technological prowess. It follows that in-ventors should be granted an incentive (i.e., exclusivity) only where they substantially build upon this body of knowledge. This leads to the requirements of novelty and in-ventive step, but also explains why the skilled person must be human – as humans are the objects of the incentive to innovate. No AI can be granted rights to an invention and exploit such rights (yet).
Killed in the Art explores the effects of AI on the skilled person fiction, mapping out the potential points of friction in future patent validity and infringement litigation in the wake of a new wave of ecosystem disrupters. Against the background of these general innovation-political considerations, the authors do not ask the question of whether to use AI systems when considering the skilled person in patent law, but how:
(i) AI could replace the “skilled person”, or (ii)AI could be regarded as a tool available to the skilled person.
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