Philosopher finds glitch in worldwide patent laws

Dr. Mo Abolkheir, a philosopher specializing in inventions and patents, has identified a logical fallacy—a flawed argument that may appear valid but is based on faulty reasoning—within the law.

Published in the Journal of Intellectual Property Law & Practice, Dr. Abolkheir’s editorial identifies a logical fallacy embedded within the ‘non-obviousness’ requirement in patent law, a flaw that had gone unnoticed until now.

Dr. Abolkheir has termed this the inventio ad hominem fallacy, a variation of the classical ad hominem fallacy, an example of which is the sporting analogy of playing the man rather than the ball. He explains that patent offices, when assessing an invention’s patentability, have been inadvertently examining the cognitive abilities of the inventor rather than the invention itself. He suggests this introduces dangerous subjectivity into the process, in terms of varying indirect interpretations of an inventor’s intellectual capacity, rather than on the technical merits of the invention.

“The inconsistency in the patent review process has made patents more vulnerable to post-grant invalidation, undermining their economic value and jeopardizing the businesses that rely on them,” explained Dr. Abolkheir, based in the Faculty of Science and Engineering.

“Patents are supposed to be reliable intangible assets upon which investments and businesses are built. This logical fallacy has compromised their reliability.”

In his study, Dr. Abolkheir raises concerns about the potential interaction between AI advancements and the current flawed patent system. He warns that if the inventio ad hominem fallacy is not addressed, the growing power of AI could exacerbate existing issues, making patent applications increasingly difficult to grant and granted patents more susceptible to revocation.

“AI is an incredible tool for innovation, but we need to fix the system’s logical flaw before we let AI loose in it,” he added.

Dr. Abolkheir is now working on an alternative to the “non-obviousness” standard using a new framework and his immediate focus is on sparking a critical debate about reforming the patent system. “Recognizing the logical fallacy is the first step towards making patents reliable again,” he said, urging policymakers, legal professionals, and inventors to engage in a dialogue about the future of patent law.

He concluded, “Further research is needed to find an alternative to non-obviousness, such as the Half-Causation framework I will present elsewhere, which resolves the logical fallacy, offers more objectivity and controls the AI risk.

“But recognizing the existence of the logical fallacy is a necessary preliminary step, and one that should prompt a much-needed discussion on reform in the patent system.”