Source: Baker Botts

Baker Botts discusses the complex challenges AI poses to patent law, particularly regarding the obviousness inquiry under 35 U.S.C. § 103. The US Patent and Trademark Office (PTO) has solicited public comments on how AI affects the level of skill of a hypothetical “person having ordinary skill in the art” (PHOSITA), a key factor in patentability.

Some stakeholders argue AI should raise the skill level, potentially making more inventions obvious and harder to patent. Others contend AI is akin to existing tools and should not alter the standard. The PTO’s approach will significantly impact patent prosecution and litigation in AI-related technologies. The article highlights ongoing debates and the PTO’s efforts to adapt patent law to the AI era.