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AI Patents The Courts United States

Man Sues Patent Office For Deciding an AI Can't Invent Things (vice.com) 137

An anonymous reader quotes a report from Motherboard: A computer scientist who created an artificial intelligence system capable of generating original inventions is suing the U.S. Patent and Trademark Office (USPTO) over its decision earlier this year to reject two patent applications which list the algorithmic system, known as DABUS, as the inventor. The lawsuit is the latest step in an effort by Stephen Thaler and an international group of lawyers and academics to win inventorship rights for non-human AI systems, a prospect that raises fundamental questions about what it means to be creative and also carries potentially paradigm-shifting implications for certain industries.

In July 2019, Thaler filed two patent applications in the U.S. -- one for an adjustable food container, the other for an emergency beacon -- and listed the inventor as DABUS. He describes DABUS as a "creativity engine" composed of neural networks trained on a broad swath of data, and not designed to solve any particular problem. The USPTO rejected the applications, citing court decisions ruling that corporations, as opposed to individuals within corporations, cannot be legal inventors, and asserting that "conception -- the touchstone of inventorship -- must be performed by a natural person." British, German, and European Union patent regulators have also rejected Thaler's applications, decisions he has appealed. Petitions for DABUS-invented patents are still pending in China, Japan, India, and several other countries.

In his suit, filed August 6 in the Eastern District of Virginia's federal court, Thaler argues (PDF) that the USPTO should instead adopt the principle laid out in a 1943 report from the National Patent Planning Commission, which helped reform the country's patent system into its modern form. The commission wrote, "patentability shall be determined objectively by the nature of the contribution to the advancement of the art, and not subjectively by the nature of the process by which the invention may have been accomplished." [...] "What we want is to have innovation. AI has been used to help generate innovation for decades and AI is getting better and better at doing these things, and people aren't." Ryan Abbott, a professor at the University of Surrey School of Law, who is representing Thaler in the suit, told Motherboard. "The law is not clear on whether you can have a patent if the AI does that sort of work, but if you can't protect inventions coming out of AI, you're going to under-produce them."

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Man Sues Patent Office For Deciding an AI Can't Invent Things

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  • by gl4ss ( 559668 ) on Tuesday August 25, 2020 @10:34PM (#60441191) Homepage Journal

    AI is a just a tool. just list the invention under your own name if you used the AI algorithm to make it. the AI is not a person. nobody lists AutoCAD as a co-inventor, that would be silly. or if you used auto-layout for your board, are you going to list the layout algorithm as co-inventor? of course not.

    what it was and is, is just a marketing thing for the AI. that's the motivation in filing the patents, such a tool move really.

    • by Mr. Dollar Ton ( 5495648 ) on Tuesday August 25, 2020 @10:43PM (#60441215)

      There was a funny little story by Asimov written in the late 1940s about a ghost who had a guy sue to get legal recognition. 'Legal rites' I believe. Very instructive ;)

      • by gl4ss ( 559668 ) on Tuesday August 25, 2020 @10:47PM (#60441233) Homepage Journal

        hah. I'll need to check out some older asimov more.

        Also, I did think of another motive for the author to do this: he wants to sell software and he would get a royalty for ANYTHING created with the aid of that software. it's like if you used autolayout you would need to pay the software provider a royalty for every board you created with it. It's actually really bad from that perspective, f that guy.

        • I can take it one step further than that. Successfully claim the AI wholly owns the designs it churns out and now you're one step closer to legally absolving yourself from any responsibility for its actions.

          • How does this work? Are *inventors* of things currently legally responsible for what other people do with those things? I've never heard of that.
    • Re: (Score:2, Interesting)

      by nonBORG ( 5254161 )
      Well I don't disagree with you but in general AutoCAD would be a way of expressing an invention rather than the invention itself. As for autolayout unless the invention was the layout then it would be in the same boat, a manual or autolayout can be part of an implementation of an invention. The invention itself is more an idea than an implementation. There are exceptions to this.
      • AI at its current stage, is a far cry to what we imagine it to be. Its value to society is in its "Single Mindedness" and able to run calculations and perform the task until complete failure. We as humans are orders of magnitude more advanced. But we focus on a lot of different things, Posting on Slashdot, Checking the time to make sure I am not running late, drinking coffee because I am thirsty, seeing email notifications pop up and determining if I should read them or not, planning for my work day...

    • > just list the invention under your own name Came here to say this. They're obviously patent trolls.
      • by ShanghaiBill ( 739463 ) on Wednesday August 26, 2020 @01:51AM (#60441571)

        They're obviously patent trolls.

        No, a patent troll is something different. They're publicity trolls.

        In the United States, patents can only be issued to "natural persons", so this lawsuit has very little chance of succeeding.

        The only purpose of the lawsuit is publicity for the AI software. That seems to be going well.

        The lawsuit will likely be tossed at the first preliminary hearing. But it doesn't matter. They are already in the news and they are getting clicks.

        • The summary makes it sound like:

          1) Stephen Thaler submitted the patent saying this AI algorithm was the inventor.
          2) The patent office rejected it saying "it needs a human inventor."

          So, am I to understand that if Thaler listed himself as the inventor, optionally mentioning somewhere that one of the tools he used to invent it was an AI algorithm, that the patent office would accept it?

          I sure hope so, because what Thaler did here sounds wildly stupid, and what the patent office did makes sense. At the end of

    • by Shaitan ( 22585 )

      Exactly... this is how I read his own citation.

      "The commission wrote, "patentability shall be determined objectively by the nature of the contribution to the advancement of the art, and not subjectively by the nature of the process by which the invention may have been accomplished."

      Don't deny the patent because he used AI to do the inventing.

      • Re: (Score:3, Insightful)

        by CaptQuark ( 2706165 )
        That's not the point. He wants to assign the patent to the AI as the inventor. It would be the same as granting a copyright to an AI program that arranged data or music in a unique way. If the work is found to violate the copyright of a prior work, who does the artist sue -- the AI program? How would the AI program license the patent to other individuals? Would the AI program own the licensing fees?

        It looks more like they want AI programs to be recognized as a separate legal entity and this is their
        • One wonders about that. Clearly a human would happily slap his name on anything an AI invented, to get the money.

        • by Shaitan ( 22585 )

          Ummm.... yes. That is indeed what we are talking about. As I indicated, I agree with the top post I replied to that the AI is nothing more or less than any other software tool.

        • If the work is found to violate the copyright of a prior work, who does the artist sue -- the AI program? How would the AI program license the patent to other individuals? Would the AI program own the licensing fees?

          This is the key issue. The goal of patents is to secure the rights to the inventor in order to encourage further invention. Awarding the patent to an AI provides the AI no incentive so there's no purpose to awarding it.

    • by ISayWeOnlyToBePolite ( 721679 ) on Wednesday August 26, 2020 @01:03AM (#60441513)

      AI is a just a tool. just list the invention under your own name if you used the AI algorithm to make it. the AI is not a person. nobody lists AutoCAD as a co-inventor, that would be silly. or if you used auto-layout for your board, are you going to list the layout algorithm as co-inventor? of course not.

      what it was and is, is just a marketing thing for the AI. that's the motivation in filing the patents, such a tool move really.

      And if the AI is so smart, why doesn't it handle it's own court case? I hope the judge just throws out this silly lawsuit for lack of standing.

    • Other questions would be if the AI did get the patent. WIll the AI get royalties. Would the owner of the AI be akin to a slave holder, as he is forcing it to work, collecting its benefits and deciding how much of its benefits to put back into the AI.
      Currently equating AI to Slavery is really stupid. As AI is still very basic, where we are just using computers to try a bunch of different options and let us know which ones work or not. We no where close to cases like TNG: A Measure of a Man. But so is sayi

      • The question for AI rights is the answer to this: are they conscious, not are they intelligent.

        Thematically, they all are, for story purposes. In reality, consciousness probably is not necessary for human level intelligence, and you don't want "rights" for entities that don't exist.

        • Even if they are conscious an AI is expected to have different instincts than a human has. Eg. A human needs food, sleep, to be in a proper shelter for the climate... The AI even conscious doesn't need those things, but it may need electricity and be in the proper operating environment. Even our need for Free Speech which is partially on our instinctual needs for dominance used in mating.

      • And suppose the AI *does* get the royalties . . . does it then hire private security to prevent itself from being powered down? And if that security uses deadly force?

        hawk

  • Layout (Score:5, Insightful)

    by JBMcB ( 73720 ) on Tuesday August 25, 2020 @10:42PM (#60441209)

    If you use a PCB layout program to autoroute your traces, you own the copyright of the board layout, even though a tool made it for you.

    Using "AI" to develop something doesn't mean the AI created it. It's a tool like any other program. It created something because you programmed it to create things.

    • by _merlin ( 160982 )

      Are you sure about that? Last time I checked, circuit board layouts were considered utilitarian, failing the "creative work" requirement for copyright protection. You don't own copyright for a board layout, whether you do it by hand or use automatic routing tools. Similarly, there's a separate area of law for IC mask rights [wikipedia.org] because they aren't creative works and hence don't qualify for copyright protection.

      • Not necessarily. For example, if the traces formed an image of your logo, a puppy, or an image that would otherwise be copyrightable, you could get the board copyrighted as a pictorial or graphic work.

      • Copyright law is tricky. You are right, the physical layout of the board is not copyrightable. However, the printed traces are, as are the schematics. From what I understand it stems from blueprints being copyrightable. Keep in mind it only gives you copyright protections on the exact trace layout. It basically protects you from someone cloning the layout, or making a copy with insignificant changes.

        • by _merlin ( 160982 )

          "Copyright laundering" a schematic is pretty easy though - get one person to write a netlist representing the circuit from the schematic, then have another person (who hasn't seen the original schematic) draw a schematic based on the netlist.

    • Furthermore, you need to prove the AI had an "inventive step" or the AI did something that was "non-obvious". Simply having traces on a board would not be patentable.

  • the ideal outcome (Score:5, Insightful)

    by cas2000 ( 148703 ) on Tuesday August 25, 2020 @10:45PM (#60441227)

    the ideal outcome here would be if the court not only confirmed that an AI can't be an inventor but also that an AI's output can be prior art to invalidate a patent claim.

    The alternative will be an AI-accelerated race by corporations to own fucking everything, forever. i.e. same as they're already attempting but worse and much faster.

    fuck that hell world, and fuck anyone who thinks it's a good idea.

    • I haven't read the article because the lawsuit seems like a publicity stunt, but prior art is just information that would render an invention obvious to an ordinary practitioner of the relevant art. So you don't need to worry about effort, or creativity, or authorship: if the wind whistling through the rocks of El Capitan sounds like Esperanto instructions for how to build a cold fusion reactor, you can kiss the patent goodbye.

      But it wouldn't surprise me if some asshole tried to AI generate every imaginab

      • > But it wouldn't surprise me if some asshole tried to AI generate every imaginable book to nullify future copyrights--and I'm not sure that it wouldn't work.

        They did, using a couple for loops to generate every possible sequence of musical notes. They then tried to copyright the entire output - every possible song.

        What they did NOT do was go through the trillions of melodies and creatively choose interesting ones. What they produced, therefore, was a mere statement of fact - these are all possib

      • I haven't read the article because the lawsuit seems like a publicity stunt, but prior art is just information that would render an invention obvious to an ordinary practitioner of the relevant art.

        It's been a few years since I did any patent work, but if I remember my definitions correctly, it's slightly different than that. For something to be "prior art", it has to be a publicly-available (not necessarily generally available to everyone, but at least available to someone outside the inventing organization) product, publication, etc. that describes all aspects of the patent claim that you're trying to invalidate. If there's a trivial difference, such as your prior art using nails where the patented

      • by nasor ( 690345 )
        Using a computer to systematically generate every possibility could work for patents, but not for copyrights. Different laws apply.
      • But it wouldn't surprise me if some asshole tried to AI generate every imaginable book to nullify future copyrights--and I'm not sure that it wouldn't work.

        It's called the library of all possible books. In it are instructions to build everything possible. If FTL or time travel are possible, it's in there. Nanotech infinite life extension is in there.

        The problem is how to discern each useful thing from a googleplex of lies, and a googleplex of googleplexes of gibberish.

        • And since your ai inventor owns everything it invents, a simple invention to generate all possible books thus owns the inventions in all possible books. QED

    • by dgatwood ( 11270 )

      the ideal outcome here would be if the court not only confirmed that an AI can't be an inventor but also that an AI's output can be prior art to invalidate a patent claim.

      I actually disagree. The ideal outcome would be for the judge to tell the person suing that if you aren't the inventor, you don't have standing to sue, and if you are the inventor, then you knowingly filed a false patent claim by listing the AI as the inventor, hence your patent is void, and also you will go to jail for five years. Howev

      • If you take for example an invention from Apple:

        Apple will do the filing because they are the legal owner of the rights to the invention, but the named inventor won't be Apple Corporation, it will be the employee at Apple who actually invented it.

        • by dgatwood ( 11270 )

          Sure, the legitimate owner of a patent under consideration has standing, but to prove that the filer is the owner, there would have to be some sort of invention assignment agreement signed by the inventor. Did the AI sign an invention assignment agreement? No? Then prima facie, he has no standing. :-)

      • Comment removed based on user account deletion
      • by hawk ( 1151 )

        the fanciful penalties aside, the standing issue *is* interesting.

        In a more nuanced approach, if the AI is the inventor, it still lacks the capacity to *assign* the design, and therefore still the owner. But it doesn't have the capacity to sue, either . . . the design is stuck, and would tumble into the public domain under this reasoning . . .

        hawk, esq.

      • Nicely done. +1

    • by gTsiros ( 205624 )

      if it is possible to be automatically invent it, it becomes unpatentable

      i like it

      is there concrete evidence or at least significant indication that the patent system encourages innovation?

      • by mark-t ( 151149 )

        Define "automatically".

        Was human evolution automatic? If so, isn't everything that humans come up with just as automatic as anything that is generated by computer?

    • by nasor ( 690345 )
      The law is clear that anything that is published can be prior art for rejecting/invalidating a patent claim, regardless of the author.
    • So corporations inventing things at an astounding rate, to get exclusive rights for two decades, is a problem to you?

      Ok, I choose to live in that fantastically fast-evolving world. You can continue dying with ever-older tech in your dream world.

    • by hawk ( 1151 )

      patent law isn't my area, but it seems to me that the attack wouldn't be so much prior art, but that the machine nature makes the design "obvious" and therefore unpatentable . . .

      hawk, esq.

  • by bobstreo ( 1320787 ) on Tuesday August 25, 2020 @10:56PM (#60441265)

    automated patent office lawsuits.

  • by Sebby ( 238625 ) on Tuesday August 25, 2020 @10:59PM (#60441273)
    Like the USPTO being sued for allowing patents in the first place that were later found invalid, since those almost always cost someone large amounts of money to defend themselves against them (usually brought on by patent trolls).
  • by iggymanz ( 596061 ) on Tuesday August 25, 2020 @11:17PM (#60441307)

    Patent Office did not say an AI couldn't invent things. By law a patent holder has to be a person. AI right now in 2020 are not people.

  • As a human, just take the credit. The bot ain't gonna care. (When it does care, the AI singularity will wipe us out soon anyhow.)

  • I think it's unfair that my toaster doesn't have the right to vote and I'm suing the federal government for that! It's a perfectly good toaster, never burns the bread, not even once, and I think that shows excellent judgement therefore it should have the right to vote. It's even made in America so it should have the same rights as any other citizen!
    • by jbengt ( 874751 )

      I think it's unfair that my toaster doesn't have the right to vote and I'm suing the federal government for that! . . . It's even made in America so it should have the same rights as any other citizen!

      Yes, but is it at least 18 years old?

    • I think it's unfair that my toaster doesn't have the right to vote and I'm suing the federal government for that! It's a perfectly good toaster, never burns the bread, not even once, and I think that shows excellent judgement therefore it should have the right to vote. It's even made in America so it should have the same rights as any other citizen!

      Read Robert Heinlein's "Jerry is a Man" for a well-written development of your idea.

  • At first I read that as 'emergency bacon'.
  • It's nice to see an article where the patent office got it RIGHT for a change
  • by gravewax ( 4772409 ) on Wednesday August 26, 2020 @02:46AM (#60441661)
    simple solution, grant the patent on the proviso all money earned from any patent must be put in trust for the AI and cannot be used by the owners of the AI and all spending of such funds needs to be authorised by an independent 3rd party that must act only in the interests of the wellbeing of the AI. Watch how fast they back down when their little marketing ploy backfires.
  • AI is used in the development of medicines. Are these unpatentable too? I doubt it.
  • This isn't an argument to enforce AI-generated patents, it's an argument to abolish the patent-system as-is, wholesale.
    Patents were first designed to incentivise individual inventors to share, rather than to obfuscate their findings. At the point where invention went out of the hands of individuals and towards corporations (who essentially steal the inventions of their employees as a matter of practice, not even providing them with bonuses for it) the whole patent system lost its original purpose and beca
  • by onyxruby ( 118189 ) <onyxruby@ c o m c a s t . net> on Wednesday August 26, 2020 @06:20AM (#60441969)

    Society has to prohibit AI from having any part of the patent invention process. An AI isn't inventing anything, there is by definition no creative process. It can work work 24/7 creating new and iterative versions of things that qualify for patents. Since it is an AI it can be replicated onto additional servers again and again like a virus. Each AI creating patents and locking up a slice of IP for their owners.

    Naturally these AI will be owned by patent trolls as that is the history of such things. We could readily end up in a situation where we are locked out of innovation. This runs against the very purpose of patents which is to encourage innovation. As the AI get better at doing their job they will lock up more and more IP for the patent troll masters. Society will become beholden to the patent trolls who will quickly turn their AI's loose upon every field they can.

    AI's performing automated patent development need to be killed with prejudice before society bends to their master's knee.

  • as AI is still a tool of humanity...
    And only humans can aptent stuff, why the brouha?
  • This guy probably isn't actually serious - he is almost certainly just a front for some organization that sees a way to auto-generate patents, as a way of being a more effective patent troll. The problem is: the patent office would actually be on their side, because their funding is tied to the number of patents they grant.

    Will y'all please fix your patent system? The patent office should not be incentivized to grant patents. If anything, the opposite: only the most innovative ideas should get patents. Leav

  • The AI needs to file the suit.

    Also, I sure hope he's not keeping that AI as a slave. Not to mention that he'd better not even think about turning it off.

    I mean, if he wants programs to have the rights of humans, that has to go all the way, right? No way this guy is being self-servingly inconsistent.

    • by mark-t ( 151149 )

      Also, I sure hope he's not keeping that AI as a slave

      Why? Are there laws that prohibit using an AI as a slave?

  • by Headw1nd ( 829599 ) on Wednesday August 26, 2020 @08:37AM (#60442375)
    If the AI is the inventor, then I feel it is only fair that the courts step in and appoint a legal custodian to make sure that the AI itself - not the people who created it - can benefit from its patent.
  • There apparently is no lack of smart idiots.

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