Machines of Ordinary Skill in the Art: How Inventive Machines Will Change Obviousness

By Ryan Abbott

©2019. Published in Landslide, Vol. 11, No. 5, May/June 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Machines are widely facilitating innovation and have been autonomously generating patentable inventions for decades.1 “Autonomously” here refers to the machine, rather than to a person, meeting traditional inventorship criteria. In other words, if the “inventive machine” were a natural person, it would qualify as a patent inventor. In fact, the U.S. Patent and Trademark Office (USPTO) may have granted patents for machine inventions as early as 1998. In earlier works, I examined instances of autonomous machine invention in detail and argued that such machines ought to be legally recognized as patent inventors to incentivize innovation and promote fairness. The owners of these machines would be the owners of their inventions. Terms such as “computers” and “machines” are used interchangeably here to refer to algorithms or software rather than to physical devices or hardware.

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