Journal Articles

RETHINKING THE OBVIOUSNESS INQUIRY IN THE AGE OF GENERATIVE AI 

Human inventors are increasingly employing artificial intelligence in the inventive process. With the availability of generative AI, which can create new contents in a manner that exceeds human capabilities, inventors have the best tools at their disposal. However, in evaluating the patentability of AI-assisted inventions, the traditional obviousness inquiry under Graham does not adequately capture the extent of which a skilled person in the art can judge the obviousness of such inventions. This Note thus addresses the impact of generative AI on the level of ordinary skill in the art and the person having such skill in the art. It also discusses the need for a separate disclosure requirement for patent applications that claim AI-assisted inventions. Next, it proposes a set of criteria that augments the obviousness inquiry into AI-assisted inventions. Finally, it applies the proposed criteria to evaluating the obviousness of a controversial AI-assisted invention that was once rejected by the USPTO for listing AI as its sole inventor.