One of Ordinary Skill in the Art at the Time of the Inveiton

With the increasing corporeality of applications in the field of artificial intelligence (AI), many AI-related patent applications take entered the examination stage in China.

Even so, an invention in the field of AI is unlike from a full general invention in that a technical solution adopted in the invention in the field of AI keeps evolving through self-learning without creative efforts made by the person skilled in the art. Therefore, in the process of examining inventions in the field of AI, how to define 'the person in the fine art' in the patent police practice is an important issue in the current examination.

Definitions clarified

Definitions of the 'person skilled in the fine art' are different in patent do for different countries and regions. For instance, in the The states, the person skilled in the art is considered to have certain creativity.

In the KSR case (KSR International Co v Teleflex Inc et al), the Supreme Court of the US conspicuously stated: "[A] person of ordinary skill is also a person of ordinary creativity, non an automaton". "[I]north many cases a person of ordinary skill will exist able to fit the teachings of multiple patents together similar pieces of a puzzle". Role personnel may also take into account "the inferences and artistic steps that a person of ordinary skill in the art would employ".

In Europe, the 'person skilled in the art' is presumed to have had access to everything in the 'state of fine art', in item the documents cited in the search report, and to have been in possession of the ways and capacity for routine work and experimentation which are normal for the field of engineering science in question (see the 'European Guidelines for Examination', Role G, Affiliate 7, section three).

"Cess of whether the solution involves an inventive step must therefore be based on that specialist'southward cognition and ability."

If the problem prompts the person skilled in the art to seek its solution in another technical field, the specialist in that field is the person qualified to solve the problem. Cess of whether the solution involves an inventive step must therefore be based on that specialist's cognition and power (see the 'European Guidelines for Examination', Part Yard, Chapter VII, section 3).

Further, although it is non explicitly specified in the European Guidelines for Examination whether the person skilled in the art should have inventiveness, in the European legal precedents, it is inclined to consider the person skilled in the art to have certain creativity.

Still, in China, the person skilled in the art refers to a fictional 'person' who is presumed to exist aware of all the common technical cognition and have access to all the technologies existing before the filing date or the priority engagement in the technical field to which the invention pertains, and have chapters to apply all the routine experimental means earlier that date.

Notwithstanding, he is not presumed to have inventiveness. If the technical problem to be solved impels that person to seek technical ways in other technical field, he should also exist presumed to accept access to the relevant prior art, common technical knowledge, and routine experimental ways in the other technical field earlier the filing date or the priority date (run across 'Guidelines for Patent Test', Part Ii, Chapter 4, section 2.4).

Although the higher up-mentioned countries and regions have dissimilar requirements for the capacity of the person skilled in the art, the rule that "if a technical solution tin can be obtained through logical analysis, reasoning or limited experiments, it should exist deemed obvious" is all the same a rule widely adopted throughout the globe.

In the administrative litigation case of invalidation of patent right of "a kind of injection mouth construction of soft bag" (administrative judgment (2006) No. 231of Beijing Higher People'due south Court) the Beijing College People's Courtroom held that under the status that reference document 1 discloses the technical solution of thirty–70 degrees and reference document 2 discloses the technical solution of obtuse angle, the technical solution of 90–140 degrees disclosed in the patent involved can exist obtained by a person skilled in the art through a elementary test (limited experiments). The to a higher place case implies that a person skilled in the fine art could still take creativity nether some situations in the do of patent law in China.

AI technology

The AI field is generally characterised in that AI technology can keep evolving through learning and grooming of input data. With the aggregating of the amount of data used to train AI and the fourth dimension for learning of AI, fifty-fifty for AI technologies with the same start signal, different development routes may occur.

On the other hand, for the AI field, data iteration is conventional experimental means, and information technology is possible to produce technical solutions that are beneficial to solve practical problems through long-term data iteration.

From the above AI characteristics, for well-nigh AI inventions, the principle concept in AI is to select or suit the best solution with respect to the technical issues "through logical analysis, reasoning or express experiments". The powerful calculating ability brought by the computer also makes the technical solution which was difficult to exist realised by transmission calculation and selection (grooming) becomes relatively credible.

Therefore, under these circumstances, the person skilled in the art should correspondingly accept improved computing capacity and selecting capacity to match the development of the AI field.

Improvement of the computing capacity and selection capacity makes information technology easier for the person skilled in the art to combine the teachings of multiple patents, to evaluate the invention points of patent applications.

In summary, in society to adapt to the development of AI technologies, the person skilled in the art with college learning and preparation capacity or certain creativity is expected in the field of AI in China to fulfill the requirements of AI'due south development.

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Jing Qu
Patent attorney
Liu Shen & Associates
T: +86 28 8532 9776
E: jingqu@liu-shen.com

Jing Qu is a patent attorney at Liu Shen & Assembly. She joined the firm in 2012 and became a qualified patent attorney in 2016. She specialises in patent prosecution and re-exam with a focus on communications, electronics, information science, net, semiconductor and graphical processing.

Jing participated in the assay on validity and relevance of patents in a series of patent infringement lawsuits and related invalidation lawsuits between Samsung and a high-tech corporation in Red china.

Jing obtained a masters' caste in indicate and information processing from Beijing University of Posts and Telecommunication.

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Dongguo Liang
Patent chaser
Liu Shen & Associates
T: +86 106268 1616
Eastward: dgliang@liushen.com

Dongguo Liang is a patent attorney at Liu Shen & Assembly. He provides high quality services in the IP field to a variety of clients, ranging from high tech start-ups to multinational giants, and his practicing field focuses on semiconductor, circuits, telecommunication and mechanics.

Dongguo represented Samsung against a high-tech corporation in a serial of patent invalidation cases and related infringement cases in China from 2016. In 2018, he participated in patent invalidation cases with Apple on behalf of Qualcomm.

Dongguo has a masters' degree in law from Temple University.

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Source: https://www.managingip.com/article/b1s35t38ts1kv6/future-of-ip-china-the-impact-of-ai-on-persons-skilled-in-the-art

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