We have entered an era in which computers are not just crunching numbers but generating works of a sort that have historically been protected as “creative.” Indeed, at least one company is claiming (satirically, it appears) that its computers are already in the process of generating essentially all possible creative text—the modern-day equivalent of Emile Borel’s army of typing monkeys randomly reproducing the complete works of Shakespeare. The march of automation into fields historically dependent on human ingenuity raises important questions about the extent to which materials developed without human intervention deserve protection under our intellectual property laws.
The coming wave of computer-generated material is on a collision course with our patent laws. At least one new company is already using brute-force computing power (not satirically, it appears) to mechanically compose text for thousands of patent claims covering potentially novel inventions and also to generate defensive publications designed to prevent others from obtaining competing patent protection. This Article considers whether technologies invented by such techniques should be patentable, and, if so, who exactly should be credited with inventorship. Additionally, the Article examines the extent to which publication of computer-generated content should be treated as prior art and allowed to prevent others from obtaining patent protection on independently created inventions.