Patent Obviousness In The AI Era

The proliferation of artificial intelligence ("AI") presents complex challenges for intellectual property, especially within patent law. In particular, the obviousness inquiry under 35 U.S.C. § 103 may be susceptible to disruption by advances in AI technology. A key factor in determining whether a patent is obviousness or not over the prior art is the level of skill of a "person having ordinary skill in the art" ("PHOSITA"). As AI increasingly bolsters the innovation process, some stakeholders argue that this level of skill should increase, thereby rendering more inventions obvious—others disagree.

Recognizing this, the United States Patent and Trademark Office ("PTO") issued a Request for Comments ("Request") in April 2024 regarding "the impact of the proliferation of artificial intelligence on prior art, the knowledge of a person having ordinary skill in the art, and determinations of patentability." 89 Fed. Reg. 34217. The Request asked for public input on