An infinite number of monkeys against novelty
20 Sep 2016
The digital age has undoubtedly reshaped the contours of our lives, in ways that are often transcendent or profound. Sometimes, however, the nexus of technology, connectivity and information in which we presently swim throws up bizarre challenges. Intellectual Property law, being concerned with the rather esoteric concerns of products that come from the mind itself, sometimes finds itself dealing with issues of an oddly philosophical nature. Take, for instance, the problems that can arise when thinking machines are set, in their blind and senseless way, to the task of invention itself.
There is a well-known mathematical concept, possibly attributable to the French mathematician Émile Borel, which holds that an infinite number of monkeys (each sitting in front of a typewriter and hitting keys at random for an infinite number of years) will eventually type out the complete works of Shakespeare. This theory, known generally as the infinite monkey theorem, exists simply to prove a mathematical point: that even exceedingly unlikely events are bound to happen at random given the actions of a massive number of agents and deep time. But the theorem also has a further, and strangely patent-pertinent, wrinkle.
Here, the key insight is that there are only a limited number (although an exceedingly large one) of combinations of letters which could possibly be typed in the first place. Given enough time, and enough typing, one could exhaust every possible combination of words, sentences and books to produce a library (dubbed the Total Library or Library of Babel by the Argentinean author Jorge Luis Borges) containing every book that has or could ever be written. The monkeys, having randomly key-bashed their way to Hamlet, would as a by-product have also produced every other work that the English language can possibly encompass.
Recently, however, some enterprising soul decided that, given the speed of modern computers, one could dispense with the theoretical aspect of the whole exercise (and the monkeys) and have a go at proving this theorem directly. And so, one Jonathan Basile has harnessed the power of silicon to produce a real version of the Library of Babel (which can be found online at https://libraryofbabel.info/). This version uses the power of random numbers and brute computational force to create, store and catalogue astonishing numbers of books. Each book, in turn, being composed of 3200-character pages made up of random assemblages of the 26 letters of the alphabet (all lower case), spaces, commas and periods.
Here our dilemma begins; because, as a product of a computer program, the Library of Babel is both available online and fully searchable. Which means that instead of being trapped for eternity in a maze of books written in gibberish (some tiny few of which contain a profound poem or eternal truth), I am able to send a query directly to the machine which maintains and catalogues this vast literary space from the comfort of my computer. From there, the machine will, in the fashion of search engines everywhere, comb through the endless shelves and return with the result I want.
Where this gets distressing for patent attorneys is the requirement of what is termed absolute novelty in order to render an invention fit for patent. This simply means that, in order to obtain a valid patent, the invention must not already have been publically disclosed anywhere on earth at the time of filing. Putting this together with the Library of Babel, it becomes clear that such a structure cannot by its very nature help but to make every invention invalid. The Library, in both containing everything which can be written and making that everything easily searchable, must surely also make every invention lack novelty.
There are only two mitigating factors preventing total disaster for hard-working inventors (and patent attorneys) everywhere. The first is that the digital Library of Babel, although containing some 104677 books, is still nowhere near complete. This is because, although it contains every possible page which can be written, the Library does not yet house every possible combination of pages (and thus every possible book). This thankfully limits the scope of disclosure, as succeeding pages describing the same invention are very unlikely to appear together within the same book.
The second mitigating factor is simply that, when confronted by such a monumental challenge to the concept of novelty (and thus patents in general, and their livelihoods in particular), lawyers are exceedingly unlikely to bow down and accept that all that can be done has been done. Instead, my suspicion is that either the concept of novelty itself will be altered in order to exclude the vagaries of randomly-generated books, or that a special exception will be carved around the base of the Library walls. In this manner, I feel confident that inventive genius will be spared the ravages of armies of digital monkeys.(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)