* How Invention Automation is Disrupting Patent Law

Invention automation has the potential to disrupt patent law in a variety of ways that patent attorneys need to know about.

By Robert Plotkin

First published 4/11/2017; YearOfDisruption.com; publisher: GiantPeople.

More and more frequently, software is being used to automate the process of conceiving of and designing new inventions. Humans, to be sure, still play a significant role in the inventive process and I find it more helpful to think about humans and computers as being collaborative partners in inventing than to think about software as replacing human inventors. But there is no doubt that computer automation is and, to an increasing extent will be, a game changer in the process of inventing.

I think this is such a significant development in the history of inventing that I wrote a book about this revolution in inventing: The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business (Stanford University Press 2009). By the time I finished the book, software had already played a significant role in inventing products ranging from toothbrushes to antennas to pharmaceuticals, and patents had been awarded on circuitry that had been designed almost entirely by software. Now almost ten years have passed and the pace of computerized inventing has accelerated as the result of exponentially more powerful hardware and long-awaited advances in artificial intelligence, such as deep learning.

Invention automation has the potential to disrupt patent law in a variety of ways that patent attorneys need to know about. For example:

  • If an advance in invention automation makes it significantly easier to churn out new inventions, should those inventions be patentable? What standard of obviousness should be applied to such inventions? If computers find it easy to generate inventions of a certain type, should we adopt a “CHOSITA”—computer having ordinary skill in the art—standard for obviousness?

  • Who qualifies as an inventor of an invention that has been designed using a substantial amount of computer automation? Is there any amount of computer automation that should disqualify all humans involved as inventors?

  • Artificially-generated inventions can be difficult or even impossible for humans to understand. A NASA antenna that I described in The Genie in the Machine had a bizarre shape that looks like a crumpled-up paperclip. Although it can be shown, through testing, to work extremely well, the reasons why it works so well are not well-understood. How can an invention like this be described in a patent application in a way that satisfies the written description and enablement requirements, and that provides a scope of protection that is sufficiently broad to avoid design-arounds?

  • If a client has developed invention automation technology that has the potential to generate a large number of inventions over an extended period of time, should you, as their patent attorney, advise them to patent the invention automation technology itself or to keep it as a trade secret? What about the inventions that such technology generates? And if you advise your client to keep the invention generation technology as a trade secret but to patent the inventions that it generates, what problems might this raise in connection with the written description and enablement requirements?

I’ve already had the good fortune to work through these issues with clients, which has been both exciting and nervewracking. Advising clients successfully on these kinds of issues requires a thorough understanding of patent law, the underlying technology, and—most importantly—a mind that is open to the disruptive implications of invention automation.


Robert Plotkin

Attorney Robert Plotkin has been a leader in obtaining software patents for two decades, and consistently obtains software patents for clients even after the Alice Supreme Court decision stopped most companies from obtaining software patents. He uses his decades of legal and engineering experience to maximize the value of his clients’ patent portfolios – allowing them to realize the largest return on investment even in the post-Alice world. His clients have profitably sold and licensed the software patents he has obtained for them to major corporations worldwide.

* Consumer hardware – There and back again

Clocktower Law serves startups. Some ideas succeed, some fail. But most are somewhere in the middle, where little things matter. So what happens when you’re in the middle and your VC changes course? This is the story of one such startup, who shall remain nameless. The VC shall also remain nameless, but if you search, you’ll find them.

By Anonymous

First published 4/4/2017; YearOfDisruption.com; publisher: GiantPeople.

We're transitioning away from small and medium businesses, and focusing instead on tall and grande.

Names and places have been omitted to protect the innocent.

I began my passion project while my father was still alive. There was no question in my mind that there was a huge, global population who shared my need – a simple solution to connect geographically distant elderly family members…or more directly…something to assuage the guilt of sandwich parents everywhere.

Serial home run hitter? No. But I’ve done ok by my investors (and here I mean everyone who invested time, money, faith etc. in our businesses). I have a solid track record of innovation in my 25+ year stint at the intersections of communications and entertainment. I just thought the sheer size of the problem/opportunity would garner significant interest. The partner at one of the firms that backed my last startup stepped up immediately. His was a shared view of the problem and clear alignment on the business and social entrepreneurship opportunities – this was a chance to address a huge market need and make the world a better place.

One in, term sheet, team, big market, IP, what’s not to like, right? In retrospect, I should have listened a little more closely to those voices warning me to stay off the road.

Unless you’ve got cold fusion in a bathtub you’re in for a seemingly endless series of VC pitches (and even then, nothing’s guaranteed – see the Nikola Tesla VC pitch on Youtube). The hurdle height for a fellowship led by a guy pushing 50 spinning a consumer product story about people who were even older wasn’t readily apparent. The power of the millennials was growing in the west.

It took a while. A long while. Eventually, another intrepid VC joined our quest. He too lived the experience and understood the need. We carefully managed our relief as he leaned in making it clear he wanted to do a deal…our resources and options were all but spent.

From the heights we had ascended it looked like a clear managed, descent to a large seed round led by two respected firms, but this is where our story takes a turn for the worse.

It’s true of entrepreneurs, we simply don’t listen. We can’t really. As a very successful VC told me once, “look, we’re mostly wrong, don’t listen to us”. Besides, we’re supposed to challenge and push and cut paths through undiscovered country. And yet, we must fail fast too. Balance your rations. Don’t drink too much of your Kool-Aid. Stay off the road.

Meeting after meeting ended largely the same way. We had a cool product, a solid team, great investors, but they didn’t “understand” the space. No one’s going to say they don’t want to invest in old people, that they’re not early adopters, that they might actually die off in large numbers before you get your business to critical mass. Wait…actually someone did say that. Those millennials, one ring to rule the VC world. Swipe left.

Then there was the reticence to invest in consumer hardware projects, that is unless it might be a robot. (Robots are, well, cool…haven’t you seen that creepy headless “dog”?) Too complicated, too risky, too expensive, “Why don’t you just do this with software only?”.

I think most of these objections were just meat on the “no”. Unfortunately, while large (500m globally) the senior market is hard to reach. Customer acquisition cost is notoriously high. Selling indirectly (sandwich parent as purchaser) further complicates things. Still, it is a real need and a very large market equipped with motivated customers with purchasing power. There just isn’t a great wealth of patient capital out there chasing ideas like this. That’s too bad really.

I vividly recall my wife dropping the MIT magazine into my lap. On the cover, Buzz Aldrin. In bold text, “You promised me Mars colonies. Instead I got Facebook”. Inside, a short list of the biggest challenges facing us humans, challenges technology should take on. The ballooning epidemic of dementia and the overarching societal issue of the way we deal with aging in the west (see: “Being Mortal” by Atul Gawande) continue to motivate the choices I make in my professional life despite what happened with my startup.

If I were to end this commentary with a call to action, it would be for more technology investors to embrace a longer view, to adjust risk return metrics in favor of a mix of initiatives that are high risk/high return hockey sticks along with a couple tortoises. There are meaningful returns here and rich IP opportunities awaiting those with the tolerance and patience to pursue them. And hey, maybe an opportunity or two to truly make a difference.

I am deeply appreciative to all those who supported me on this adventure, including the publisher of this blog. To life, learning and failure…..it’s the new black.

* What’s The Goal Of The ‘Year Of Disruption’ Project?

I was on the phone recently with one disruptor, talking about the project and the contributions I thought she could make.

Then she asked me, “What is the goal of the ‘Year of Disruption’ project?”

That’s a very good question. And this is a paraphrased version of my answer. I don’t necessarily have a specific goal for the ‘Year of Disruption’ project. I have a good idea about once per decade, and I’m pretty sure that this is one. I want to create a platform for sharing cool ideas and see where it goes.

In 1992, when I wrote my first book about how (and why) lawyers should use the Internet, I did it because it was cool. I did not have a goal. I just wanted to write a cool book and see what happened next. Turns out I wrote 7 editions of that book over 4 years and got to participate in the Internet 1.0 fun for 6+ years. Those experiences (plus one good exit) let me start my law firm, which was another one of my good ideas.

Looking further back, I did not attend MIT and major in electrical engineering to become an electrical engineer. I attended MIT because I thought it would be cool.

Similarly, I signed up for AFROTC to pay for college, and then I decided to try to become an Air Force pilot. Not because I wanted to be a pilot, but because I thought it would be cool. (Footnote: All of my pilot training classmates had wanted to be pilots all of their lives. When I didn’t make it through pilot training, I just moved on to the next thing. Query as to what happened to those who put all of their eggs in the “I’m going to be a pilot” basket.)

A recent article in one of my favorite blogs confirms that I am not alone in my thinking.

Jason Kottke writes about Jason Fried (founder of 37signals, which became Basecamp), who writes about not having goals (http://kottke.org/16/07/ive-never-had-a-goal):

I can’t remember having a goal. An actual goal.

There are things I’ve wanted to do, but if I didn’t do them I’d be fine with that too. There are targets that would have been nice to hit, but if I didn’t hit them I wouldn’t look back and say I missed them.

I don’t aim for things that way.

I do things, I try things, I build things, I want to make progress, I want to make things better for me, my company, my family, my neighborhood, etc. But I’ve never set a goal. It’s just not how I approach things.

A goal is something that goes away when you hit it. Once you’ve reached it, it’s gone. You could always set another one, but I just don’t function in steps like that.

So I can relate to that. It’s not that I’m NOT goal-oriented, just that goals themselves are not what drives me.

The first 15 years of running my law firm were really cool. I want the next 15 years to be even more cool. And I’m pretty sure that disruption will be part of the future, as it has been part of the past. I’m also fairly certain that I don’t have all of the answers, nor do I necessarily even know all of the questions! But knowing what you don’t know is a good thing, I’m pretty sure.

Year of Disruption Logo