Imagine That IP Law Blog

The concept of the "person of ordinary skill in the art" (POSITA) remains pivotal in patent law, particularly in evaluating obviousness under 35 U.S.C. § 103 and compliance with enablement and written description requirements under 35 U.S.C. § 112. Traditionally, the POSITA is defined by their technical competence and ordinary creativity, enabling them to recognize and combine known methods to achieve predictable outcomes. However, with advances in generative AI such as ChatGPT, a new question arises: could such AI fulfill the role of the POSITA, including providing a benchmark for the enablement and written description standards?

Generative AI’s Capabilities in Modern Technical Fields
Generative AI models like ChatGPT have advanced to simulate human understanding and problem-solving within specific technical domains. Trained on vast bodies of technical literature, patents, and scientific research, such AI has demonstrated proficiency in generating, analyzing, and explaining technical concepts with remarkable accuracy and relevance. These AI systems, designed to operate based on probabilistic reasoning, exhibit an ability to process complex information that rivals, and sometimes surpasses, that of a human POSITA.

Legal Standards for the POSITA: Ordinary Skill and Ordinary Creativity
In KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), the U.S. Supreme Court emphasized that the POSITA must be “a person of ordinary creativity,” rather than a mere “automaton.” This distinction highlights the importance of the POSITA’s capacity to apply both knowledge and reasonable creativity to solve technical problems and combine known methods in predictable ways. This standard requires more than rote application of known techniques; it expects the POSITA to leverage creativity to a degree that allows for practical solutions without extending into the realm of true invention.

AI as the Modern POSITA: Creativity and Technical Competence
When considering generative AI in the role of the POSITA, we must ask whether AI can embody the “ordinary creativity” highlighted in KSR. AI models like ChatGPT can suggest technical solutions by combining existing knowledge in ways that mirror how a human POSITA would apply ordinary skill and creativity. Rather than applying a fixed algorithm, AI operates by synthesizing and contextualizing information to yield predictable solutions. This capability aligns closely with the POSITA’s ability to apply known methods creatively yet predictably, thereby demonstrating the level of reasoning that KSR envisioned for the POSITA.

For example, when analyzing prior art and solving routine technical problems, generative AI can recognize connections and potential combinations of known elements, offering plausible solutions within the expected knowledge boundaries of the art. In this way, AI can serve as a modern POSITA by contributing both technical insights and a level of creativity grounded in established methods.

Implications for Enablement and Written Description under 35 U.S.C. § 112
The enablement and written description requirements under § 112 demand that a patent specification describe the claimed invention in sufficient detail to ensure that the POSITA can make and use the invention without undue experimentation. This standard ensures that the patent specification fully conveys the invention to those of ordinary skill, aligning with the statutory goal of public disclosure in exchange for exclusivity.

If we consider generative AI as the POSITA, it can provide an objective and comprehensive means of evaluating whether an invention is enabled and adequately described. AI models trained on a wide range of technical literature can analyze a patent specification to determine if it includes enough detail for a POSITA to reproduce the invention. This aligns with the enablement requirement, as AI can objectively assess whether the disclosed embodiments and descriptions align with the claimed invention’s scope.

Furthermore, the written description requirement ensures that the inventor has fully conveyed their invention and that the POSITA can understand the bounds of the claims. AI as the POSITA could offer valuable insight into whether the specification’s language sufficiently demonstrates that the inventor possessed the claimed invention at the time of filing. Generative AI’s capacity for understanding detailed technical descriptions and identifying knowledge gaps aligns with the role of the POSITA in confirming adequate disclosure under § 112.

Mitigating Concerns of Automation and Fulfilling § 112 Standards
The KSR ruling’s warning against viewing the POSITA as an “automaton” addresses concerns over rigid, mechanistic thinking. Generative AI, however, operates beyond a simple automaton: it performs probabilistic reasoning, recognizing relationships between known techniques and applying “ordinary creativity” to propose combinations that a skilled artisan would likely recognize. This functionality allows AI to perform many of the same creative and practical applications expected of the human POSITA.

AI’s role in assessing enablement and written description also helps to maintain objectivity. Because AI systems can simulate the knowledge of an ordinary skilled person in the art at the time of filing, they provide a consistent standard that mitigates hindsight bias and helps ensure the patent specification’s adequacy. By simulating how a POSITA would interpret the disclosure, generative AI can affirm whether the specification satisfies § 112 requirements, offering an efficient and unbiased means of evaluating the inventor’s disclosure obligations.

Conclusion
In light of generative AI’s demonstrated capabilities, it can fulfill the dual role of the POSITA under § 103 and serve as an objective measure for § 112 enablement and written description requirements. AI’s ability to analyze technical information, apply ordinary creativity, and objectively evaluate patent disclosures positions it as a fitting representation of the POSITA. Recognizing AI as the modern POSITA harmonizes patent law with technological advancements, ensuring that patent examination aligns with current practices and the evolving landscape of technical expertise. Embracing AI in this role would maintain the integrity of patent standards and support the legal expectations of both obviousness and sufficient disclosure, advancing patent law in an age where human ingenuity and artificial intelligence increasingly converge.