Flashes of Genius, Toiled Experimentation, and Now Artificial Creation: A Case for Inventive Process Disclosures Open Access

Recent advancements in computing technology have yielded groundbreaking methods of automating invention. Use of this technology, whose implements are known as "artificial creation systems," may pose significant problems for United States patent law as it forms a gap in the inventive process between human ingenuity and the final product of invention that current law may be unable to accommodate. It is predicted that in the near future these systems will enable people to invent without expending time or effort. The current patent laws were not drafted with this possibility in mind. This article demonstrates the potential problems on theoretical and practical levels in applying current patent law to inventions of artificial creation systems. This article further demonstrates that granting patents for these inventions will be contrary to the drafters' intent. However, this article does not suggest immediate action because the actual uses and abilities of this technology are still unknown. This article proposes a program of "encouraged disclosure" to enable fact gathering of inventive processes over the next several years to facilitate future decision makers in working out how to deal with these and other inventive techniques that may be violative of the intent of the Patent Act. This article submits that, while the current ban on considering inventive techniques was necessary when implemented, there are mechanisms in place today, namely the Federal Circuit, that are capable of handling considerations of inventive processes without departing from the intent of the patent laws. Even if true artificial creation never comes to fruition, the public will still benefit by being provided a glimpse into the inventive process behind inventions that are about to receive monopoly protection.

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