The perks and pitfalls of creating prolific AI inventors

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This article was contributed by William H. Honakar, an intellectual property expert and IP Guy speaker.

Can AI be a patent inventor?

The US judge says “no,” while others consider it “probably.”

Artificial Intelligence (AI) has had a profound effect on our society in recent years, but it has been a long time coming. Many attribute the beginnings of AI to a paper written in 1950 by Alan Turing entitled “Computer Machinery and Intelligence”. The term Artificial Intelligence, however, first came to prominence in 1956 at a conference held at Dartmouth College in Hanover, New Hampshire. Since then, interest in AI has waned. Its most recent resurgence can be attributed to IBM’s Deep Blue Chess playing supercomputer and its quiz machine Watson. Today, AI is a part of our daily lives – from facial recognition technology and ride-sharing apps to smart assistants. It is also at the forefront of future driverless vehicles.

As AI continues to become more and more intelligent, it begs the question – should AI machines be able to patent their inventions?

At the center of this discussion is Stephen Thaler and his AI computer DABUS (“Device for Autonomous Bootstrapping of Unified Science”). Unlike everyday AI like Alexa and Siri, DABUS is a unique type of AI often referred to as a “creativity machine”, meaning it is capable of independent and complex operations. As such, it has been named as the sole inventor on two patent applications filed in several countries. One search is for food containers, and the other is for warning light. This has led to a worldwide legal battle and a debate over how to handle computer-generated innovation.

Thaler claims that he did not direct the machine to search for these products. Instead, he said, DABUS analyzes data, generates ideas and searches for products. Since Thaler is not involved in the search for these products, he thinks DABUS should be named as the inventor. However, he says he should have patent rights because he owns DABUS.

Patent applications were rejected in the United States, England, Europe and Australia on the grounds that only humans could file for patents. The High Court of England upheld the decision of the UK Intellectual Property Office to withdraw the petitions on the same grounds. The court also ruled that the patent could not be transferred to Thaler.

However, Thaler recently won an appeal in the Federal District Court of Australia. That court found that Australian law did not require a human inventor – just an inventor. The judge said the definition of inventor is vague and does not exclude machines. Thaler also succeeded in obtaining a patent in South Africa. However, this may be less important because South Africa does not test patent applications, meaning that all South African patent applications will be granted without checking whether the requirements are met.

U.S. Federal Court decision

Thaler appealed the decision in Virginia federal court through the United States Patent Office (USPTO), which ruled that the USPTO was correct. The court found that patent law clearly defines an “inventor” as an individual. Although patent laws do not define “individual”, courts, as well as the simple meaning of the word, define a person as human. Therefore, the inventor must be a man.

Thaler’s arguments were based primarily on policy matters. He argued that preventing AI from being named as inventor would discourage innovation. The court replied that there was no policy consideration by the courts; That is for Congress to decide.

Did Thaler have the option to obtain patent protection?

Yes – he could have filed in his own name. However, Thaler argues that he could not do so because he made no discovery. But he argued. He created DABUS and programmed it for discovery. It’s like a camera. The camera takes a picture, and in many situations, the photographer simply pushes the button. The camera does the rest of the work on automatic settings. With a mounted, motion-activated camera, the photographer doesn’t even press a button. The resulting picture is copyright protected, and the person setting the camera owns the copyright.

There is no question that the analysis is different for naming the creator of a copyrighted work and the inventor of the patent – it is important to name the researchers correctly, because the consequences can come if you do not. But it can be argued that Thaler should be named as the inventor of both food character and warning light. He programmed AI and turned it on with a pre-determined purpose – he ran the process. The U.S. Patent Office even suggested that Thaler be named as the inventor.

Who will patent with AI Inventor?

Who owns the patent? Or, to put it another way, who gets the money in this scenario?

On the issue of ownership, the inventor owns the patent unless it is Assigned, Or were inventors Employee And obligated to transfer ownership to the employer. It certainly raises in my mind the issues of potential pressure from Thaler. Like HAL, the AI ​​from the movie “2001 A Space Odyssey” famously said, “I’m sorry, Dave. I’m afraid I can’t do that.” To which Thaler might reply, “Sign in, or I’ll unplug you!”

As the court noted, Thaler granted any resulting patent rights to himself and signed the assignment on behalf of DABUS. He said this was appropriate because DABUS had “no legal personality or ability to enforce that agreement.” These conditions seem inconsistent. DABUS may be an inventor but does not own the invention. Patent law makes it clear that the inventor owns the patent unless he assigns his rights. “Rather, DABUS, the owner of the creativity machine, is signing the assignment on its behalf,” Thaler said in the agreement. There is no exception in patent law to be the owner of the “inventor’s owner” patent.

Copyright law is the same – only humans can have copyright, even when they are AI inventors

There is a federal court case that has already ruled that animals cannot obtain copyright. The court based its decision on the fact that Congress did not make a special provision that the animal could obtain copyright. Even Congress has not made provision for AI to be invented.

The case involved photographer David Slater and a group of celebs Crested McCabe. Slater went to Indonesia and befriended a group of wild macaques. He set up camera equipment to take pictures of them. Macox, being friendly and inquisitive, picked up the camera and took a selfie. The photos were so good that Slater published them in a coffee table book.

People for the Ethical Treatment of Animals (PETA) filed a lawsuit against Slater, arguing that Mackay pressed the camera button, and therefore, the authors. And All proceeds from the copyright owners and the book should be received. Since most macaws do not have a bank account, PETA is voluntary to manage the funds on their behalf. The Ninth Circuit Court of Appeals ruled that animals could not have copyright, and presumably, only humans could.

The copyright office was more specific. It will not register copyright for work created by non-humans. The Copyright Office’s Guidelines for Examiners indicate that only man-made works can be copyrighted, stating that “in order to qualify as a work of authorship, the work must be man-made. Works that do not satisfy this requirement are not subject to copyright.” . ”

Regarding machines, the guidelines specifically state that “in the same way, the office will not only register the mechanical process that works randomly or automatically without the machine-produced functions or any creative input or intervention of the human author.”

In other words, there is no need to apply DABUS.

Man and machine

For most of us, this is an issue of interest, and not likely to affect us directly. Not yet anyway. But, as AI continues to evolve, this issue will become more important. As more AI “invents”, they may become future inventors. If there is no AI Finder, then AI Search will be freely available to the public. Also, if the patent Is Granted, who should receive the awards? Owner of Inventor AI?

The battle between man and machine continues – and the AI ​​is constantly changing people, it seems to be winning the battle. One day they may even take the place of Congress. If that happened then we would all be in for a treat. But will we humans also pay attention at that time?

Whether AI can be an inventor is another chapter in a constantly evolving story. Humans, stay tuned.

With over 30 years of experience in the legal industry, Dickinson Wright William H. Honakar Has extensive knowledge and expertise in all aspects of patent, trademark, trade secret and copyright matters, including litigation in a wide range of technology / industries. Join him LinkedIn, Email him whonaker@dickinson-wright.com, And see more IP insights.

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