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Chin, Andrew --- "Kinematically abstract claims in surgical robotics patents" [2018] ELECD 1418; in Barfield, Woodrow; Pagallo, Ugo (eds), "Research Handbook on the Law of Artificial Intelligence" (Edward Elgar Publishing, 2018) 428

Book Title: Research Handbook on the Law of Artificial Intelligence

Editor(s): Barfield, Woodrow; Pagallo, Ugo

Publisher: Edward Elgar Publishing

ISBN: 9781786439048

Section: Chapter 16

Section Title: Kinematically abstract claims in surgical robotics patents

Author(s): Chin, Andrew

Number of pages: 43

Abstract/Description:

Humans have extended the functional reach of their bodies by inventing tools to achieve their goals. At the most fundamental level, progress in the useful arts can be measured by the extent to which humans can make and use these tools to produce the results and effects they desire. Patent claims properly demarcate this progress when they define these tools (or methods of making or using them), not merely where and how far the tools reach. Kinematic properties, which describe the geometric motions of structural elements without regard to the forces that cause them to move, should therefore not be considered sufficiently concrete to delineate the scope of a mechanical patent claim. This Chapter critically examines kinematically abstract claims in the U.S. surgical robotics industry, where claims purporting to cover all mechanisms exhibiting a specific kinematic property are widespread. Additionally, the chapter examines the patent-eligibility of a claimed surgical manipulator whose design incorporates kinematic data captured from procedures performed by kinesthetically skilled surgeons. From this case study, broader questions emerge about the kinds of progress and skill that fall within the patent system’s ambit, with further consequences for the political economy of labor and downstream innovation in the age of automation.