“According to the traditional interpretation of current patent law and court decisions, nonhumans cannot invent or possess patent-eligible inventions. However, this does not mean that there is no need to consider whether and how patent law needs to change to accommodate advances.”
With the South African Patent Office recently awarding the first patent to an AI inventor and an Australian court ruling in favor of an AI inventor, it is time to take a look at how we got here and where we are going.
The number of artificial intelligence (AI) patent applications received by the United States Patent and Trademark Office (USPTO) each year increased from 30,000 in 2002 to more than 60,000 in 2018. Additionally, the USPTO has published thousands of AI-powered inventions. According to a 2020 study titled “AI Trends Based on Patents Granted by the USPTO,” the total number of AI-related patents granted by the USPTO annually increased from 4,598 in 2008 to 20,639 in 2018. If AI-related patent filings and grants are on the rise, what went wrong with DABUS?
Birth of Dabas
The case began when Dr. Stephen Saylor filed an application with the USPTO identifying a single inventor named DABUS. DABUS is described as a creativity machine that invented the subject matter of the patent. Dr. Thaler, a human, has identified himself as the applicant, assignee, and legal representative of DABUS in the patent application and related documents. Dr. Thaler is, so to speak, DABUS, or “Ddevice for aautonomous BStrapping out of Uunified Sentity. ” According to a complaint filed on behalf of Dr. Saylor in the U.S. District Court for the Eastern District of Virginia, Dr. Saylor is engaged in the development of advanced AI systems that can produce patentable work even when no one meets the criteria for inventorship. The claimed invention was a light beacon that flashed in a new and original way to attract attention, and a beverage container based on fractal geometry. Was this just an attempt to humanize technology for controversy and media attention, to stay relevant, to change laws, to promote and sell technology, or for some other purpose?
The USPTO rejected both patent applications based on the applications not disclosing the natural person who invented the subject matter of the applications. The USPTO cites numerous sections of Title 35, United States Code, including the following sections, which state in part: (i) Section 100 defines “inventor” as the person who invented or discovered the subject matter of the invention or…. (ii) Section 101, “Any person who invents or discovers a new and useful process, machine, manufacture, or composition of matter may obtain a patent, subject to the terms and requirements of this title.'' (iii) Section 115, “The oath or declaration must include a statement that…such individual believes himself to be the first inventor or first co-inventor of the claimed invention in the application.'' Again, the issue is whether some form of AI The issue was that the named inventor must be a natural person, not whether the invention considered to utilize or involve the
If the law supports the USPTO's current position that only natural persons can invent, and there are alternatives to pursuing patents that utilize or include AI, why would Dr. Saylor want to identify DABUS as the inventor?
adaptive progress
Consider the concept of anthropomorphism, which comes naturally to us humans. We have the “ability'' to attribute human characteristics and behaviors to non-human entities such as animals and objects. And we did this using AI. Now let's think about this technology at a higher level in outer space. Humans have built systems to store data. We then built technology that can process the data to provide additional information to support human decision-making. As the demand for this type of computer-generated information increases, so does the demand for faster information, and these demands continue to increase. In all of this, the technology industry has described technology in terms of the human brain and used human behavior naming conventions such as machine learning, artificial intelligence, neural networks, and deep learning. The technology is described as simulating human behavior. However, that technology would not exist unless humans thought about it and built it.
You may remember IBM's Watson from the show Jeopardy, where AI probably first came to the attention of the general public. Watson ran on 90 servers, with a total of 2,880 processor cores running DeepQA software and storage utilizing over 100 algorithms to analyze questions. According to IBM, the broader goal of Watson was to create a new generation of technology that can find answers from unstructured data more efficiently than standard search technologies. Furthermore, according to IBM's David Ferrucci, “The goal is not to model the human brain…The goal is to build computers that can understand and interact with natural language more effectively, but not necessarily in the same way as humans.”
The branding of AI has led many of us non-technical people to think of AI as human. Branding is an important element of persuasion techniques to persuade people to make a purchase, change a law, change their position, etc. We also design machines (aka robots) to look like humans, and the film and television industry has portrayed robots as humans. Who can forget the 2013 sci-fi romantic drama Her, which featured C-3PO from Star Wars, the robots from Lost in Space, and most recently, a man who forms a relationship with an AI virtual assistant?While researching for this article, I came across the following research: Can artificial intelligence suffer from mental illness? This study considered questions and concepts related to whether robots have agency and whether AI exhibits consciousness, perception, and intelligence. AI is a very powerful tool, as are many other inventions that help humans, such as medicine, space travel, and daily life. But at this point, regardless of its description or naming conventions, technology is not a natural person. Therefore, according to the traditional interpretation of current patent law and court decisions, non-humans cannot invent or possess patent-eligible inventions. However, this does not mean that we do not need to consider whether and how patent law needs to change to accommodate advances.
imagine the future
In October 2020, the USPTO released a report titled: Public opinion on artificial intelligence and intellectual property policy. The report is based on information the USPTO collected from individuals, businesses, academia, foreign patent offices, law firms, and industry associations after the January 2019 AI Intellectual Policy Conference. One theme that emerged from public comments was that the current state of AI is limited to “narrow” AI (i.e., systems that perform individual tasks in well-defined domains), and that the majority view the concept of artificial general intelligence as a theoretical possibility that could arise in the distant future and cannot be invented with current AI. Authors cannot do it without human intervention. This comment suggests that humans will continue to be essential to the operation of AI and that this is an important consideration when assessing whether amendments to intellectual property laws are needed. The report also found that the use of an AI system as a tool by a natural person generally does not preclude the natural person's eligibility as an inventor (or co-inventor) if the natural person contributed to the conception of the claimed invention. Examples of such contributions include: (i) Activities such as designing the architecture of an AI system. (ii) select the specific data you provide to the AI system; (iii) develop algorithms that enable AI systems to process that data;
Dr. Thaler's complaint alleges that because of the USPTO DABUS denial, AI-generated inventions enter the public domain once published. I don't think the situation is that serious. However, it is important to have the conversation. Regardless of Dr. Thaler's intentions or objectives, he has provided us with a scenario that continues the conversation. It is also important to look back at other AI-related patent rejections to determine whether they were the result of outdated laws or whether the invention truly had a patent-eligible flaw. Ultimately, we may determine that current law requires changes or clarifications, including the definition of “inventor.” But as Gene Quinn, CEO and founder of IPWatchdog, pointed out, we're not there yet.
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