An old adage states that an infinite number of monkeys typing for an infinite amount of time will surely produce Shakespeare’s Hamlet. In a similar vein, the web site All Prior Art seeks to use computers and algorithms to create prior art. All Prior Art uses the existing U.S. patent database as source materials to create new “prior art.” The web site then publishes these new ideas under the Create Commons License, meaning the ideas are effectively dedicated to the public. While the algorithm is able to generate approximately 36,000 ideas a minute, the overwhelming majority are pure gibberish.
Though the project is not infinite in nature, the site’s creator Alexander Reben acknowledges, in the “About” page of the site, that due to the high number of ideas being created, eventually the algorithms will generate usable prior art. Reben additionally speculates that with an influx of funding and advanced computational techniques, his algorithm could be improved upon. Until that point, it is unlikely that it will be worth the United States Patent and Trademark Office’s time to sift through the nonsensical postings on All Prior Art.
Moreover, use of any alleged prior art from this site may raise questions about whether it can be presumed operable or enabled. MPEP §2121. As stated in MPEP §2121.01, the “mere naming or description of the subject matter is insufficient, if it cannot be produced without undue experimentation.” Citing Elan Pharm., Inc. v. Mayo Found. For Med. Educ. & Research, 346 F.3d 1051, 1054 (Fed. Cir. 2003). That is, a reference cannot be relied on for the alleged disclosure of an invention, unless that reference enables one skilled in the art to make and use that invention. Other issues surrounding these publications may include the requirements under 35 U.S.C. §101 that an inventor effectively be a person; how the hypothetical person of ordinary skill in the art’s analysis would be effected by artificially created art; and how a U.S. Court would treat art created by the site if it were to be the basis of an invalidity challenge.
The All Prior Art site is proof of concept for an interesting thought experiment. Though not quite on the same scale as an infinite number of typing monkeys, it is possible that the algorithm may, some day, create valid prior art which may be used to either reject a patent application or invalidate an issued patent. However, in its current incantation, All Prior Art is unlikely to have much – if any – impact on the patent system in the U.S.
John (Jack) J. Penny, V is the chair of Nutter's Intellectual Property Department. He counsels clients in the development of strategic patent portfolios; prepares opinions concerning infringement, validity ...
Joshua I. Rudawitz is an associate in Nutter’s Intellectual Property Department. He focuses his practice on all aspects of patent law, drawing on his mechanical engineering background and love of technology. Josh is a regular ...
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