From the PHOSITA to the MOSITA: Will “Secondary Considerations” Save Pharmaceutical Patents from Artificial Intelligence?

Artificial intelligence systems are being increasingly employed in pharmaceutical R&D to develop new drugs and medical treatments. In such a scenario, the patentability of new pharmaceutical inventions seems more and more problematic, given that the computational power of AI increases the likelihood that a new chemical composition is deemed to be obvious. In this article I argue that with the advent of AI-generated inventions both EU and US patent law cannot rely exclusively on the traditional standard of the “person having ordinary skill in the art” to evaluate the non-obviousness condition of patentability. However, I also maintain that a legislative reform is not necessary. Rather, judges should start to more strongly consider the so-called “secondary considerations” of non-obviousness that have been intermittently and inconsistently applied both in US and EU case law.