“According to the traditional interpretation of current patent law and court decisions, non-humans cannot invent or possess patent-eligible inventions. That doesn’t mean we don’t need to consider whether and how the law needs to change.”
How we got here, as the South African Patent Office recently granted the first patent to an AI inventor and an Australian court ruled in favor of an AI inventor. It's time to reevaluate where we're 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 annually by the USPTO increased from 4,598 in 2008 to 20,639 in 2018. . Grants are on the rise, but 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 his DABUS in his patent application and related documents. Dr. Saylor says that he is DABUS, so to speak.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 output even when no one else meets the criteria. It is said that it can be generated. 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 the sake of controversy and media attention, to stay relevant, to change laws, to promote and sell technology? Or is it 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 a number of sections of Title 35, United States Code, including the following sections, which state in part: (i) Section 100 defines an “inventor'' as a person who invents or discovers subject matter; It is defined as an individual who has done or…an individual. Matters of Invention; (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, “An oath or declaration that such individual believes himself or herself to be the first inventor or first joint inventor of the claimed invention in the application.'' Again, the question is not whether an invention that utilizes or incorporates some form of AI is patentable unless the named inventor is a natural person. I was told not to.
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 does Dr. Saylor want to identify DABUS as the inventor? Is not it?
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 his DeepQA software and storage he utilized more than 100 algorithms to analyze the 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 more effectively understand and interact with natural language, but not necessarily the human brain. Not in the same way.”
The branding of AI has led many of us non-technical people to think of AI as human. Branding is a key element in the art of persuasion. Persuasion to make a purchase, to change a law, to change a 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 C-3PO from Star Wars, the robot from Lost in Space, and, most recently, Her, the 2013 sci-fi romantic drama that featured a man forming a relationship with an AI virtual assistant? Is it? When I was researching to write this article, I found the following research results. 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. This report is based on information collected by the USPTO from individuals, businesses, academia, foreign patent offices, law firms, and industry associations after the January 2019 AI IP Policy Conference. One of the themes that emerged from the public comments was: The current state of AI is limited to “narrow” AI (i.e., systems that perform individual tasks in well-defined domains), and the majority views the concept of artificial general intelligence as a concept that could emerge in the distant future. We see it as a theoretical possibility, and the current situation is that AI cannot invent or write 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 states that a natural person's use of his AI system as a tool would normally preclude that natural person from qualifying as an inventor (or co-inventor) if he contributed to the invention. We also showed that this is not the case. Concept 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's also important to look back at his other AI-related patent denials to determine whether they were the result of outdated law 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 his CEO and founder of IPWatchdog, Gene Quinn, pointed out, we're not there yet.
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