Anticipate This!™ | Patent and Trademark Law Blog

Just what do you think you’re rejecting, Dave?

Posted in Science and Technology by Jake Ward on June 15, 2006

 HAL2000

Have you heard of the Invention Machine?  Through a novel use of genetic algorithms, a computer (or rather a series of computers and computer programs) has now generated an invention deemed patentable by the USPTO.  In fact, according to this article in Popular Science, a patent issued on January 25, 2005 on an invention generated by the Invention Machine (apparently U.S. Pat. No. 6,847,851).  Listed on the face of this patent as inventor and assignee was John Koza, the inventor of the Invention Machine.

Aside from the philosophical question of whether a machine can truly “conceive” an invention, there is the legal question of whether there is an actual “inventor” under U.S. law if a machine generates the invention?  The law presently requires that the applicant for a patent be the inventor (a “person” and not, e.g., a corporation) and that all persons contributing to the conception of the claimed invention be named as inventors.  See MPEP 2137.01.  If the only human involvement is the entering of raw data and technical parameters into the Invention Machine, has there truly been a conception by an inventor? 

According to the above article, the Examiner had no idea that he was looking at the intellectual property of a computer.  If he had, however, he might have had an opportunity to consider the novelty issues associated with naming the Invention Machine’s inventor as the applicant.  “A person shall be entitled to a patent unless . . . he did not himself invent the subject matter sought to be patented.” 35 U.S.C. § 102(f) (emphasis added).  Can it be said that the inventor of a machine that generates inventions will “conceive” every invention that the machine turns out?  Or, is the Invention Machine nothing more than a complex tool, akin to a ruler or a calculator, that inventors use daily in making technological advances? 

On another note, does this situation also pose a potential solution to the present workload crisis at the USPTO?  If machines can be inventors, can machines also be Examiners?  You heard it here first!

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