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AI Patents The Courts

Inventors Must Be Human, Federal Circuit Rules in Blow To AI (bloomberglaw.com) 78

Posted by msmash from the take-that,-AI dept.
Computer scientist Stephen Thaler was dealt another blow in his battle for artificial intelligence machines to be recognized as inventors on patents, after the nation's top patent court found that inventors must be humans. The term "individual" in the Patent Act refers only to humans, meaning an AI doesn't count as an inventor on a patentable invention, the US Court of Appeals for the Federal Circuit ruled Friday. From a report: The decision lines up with courts in the European Union, the United Kingdom, and Australia that have refused to accept Thaler's argument. His only currently existing win is from a South African court that said an AI can be a patent inventor. Unless the US Supreme Court steps in, the Federal Circuit is typically the final authority on US patent matters -- hearing all such appeals from federal district courts and the US Patent and Trademark Office. Thaler already plans to appeal to the high court, his attorney, Ryan Abbott of Brown, Neri, Smith & Khan LLP, said. The Federal Circuit adopted a "narrow and textualist approach" to the Patent Act, Abbott said. "It ignores the purpose of the Patent Act and the outcome that AI-generated inventions are now unpatentable in the United States," he said. "That is an outcome with real negative social consequences."
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Inventors Must Be Human, Federal Circuit Rules in Blow To AI More

Inventors Must Be Human, Federal Circuit Rules in Blow To AI

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  • “That is an outcome with real negative social consequences."

    Translates to

    Don’t pay attention to anything I say

    • Re:Translation (Score:5, Insightful)

      by dgatwood ( 11270 ) on Monday August 08, 2022 @03:16PM (#62772596) Homepage Journal

      “That is an outcome with real negative social consequences."

      Translates to

      Don’t pay attention to anything I say

      Pretty much. In fact, quite the opposite, allowing AI-generated patents would have real negative social consequences. Patent trolls with enough money would then be able to build systems that read other patents and construct new patents based on them, and flood the patent office with garbage patents that they can then use to clog up the legal system with lawsuits against anybody who tries to patent something similar, all while contributing exactly nothing to the state of the art.

      • Re:Translation (Score:4, Interesting)

        by kurkosdr ( 2378710 ) on Monday August 08, 2022 @04:42PM (#62772876)
        Just a minor clarification: Patent trolls with enough money are already able to build systems that read other patents and construct new patents based on them, they simply have to have a human in the loop that will put their name on the patent and go through the necessary bureaucratic steps to file it. In other words, even if such "automatically generated patents" are disallowed, there is no incentive or enforcement for a patent troll to disclose that their patents were automatically generated.

        The problem with allowing "AI" to file patents is that, if you remove the human in the loop, you can file as many automatically generated patents per second as you can, and that's the real problem. Basically, it's the difference between sending physical mail that contains automatically generated text (but still has humans signing on it and handing it over for delivery) and having spam bots sending thousands of emails per second.

        Of course, there could always be a system that disincentivizes the filing of bogus patents and forces patent trolls doing trolling with such patents to pay the defendant's legal costs, but that's crazy talk (/s). Which brings the question: In such a case, should AI-generated patents be allowed?

        • Just a minor clarification: Patent trolls with enough money are already able to build systems that read other patents and construct new patents based on them, they simply have to have a human in the loop that will put their name on the patent and go through the necessary bureaucratic steps to file it. In other words, even if such "automatically generated patents" are disallowed, there is no incentive or enforcement for a patent troll to disclose that their patents were automatically generated. The problem with allowing "AI" to file patents is that, if you remove the human in the loop, you can file as many automatically generated patents per second as you can, and that's the real problem. Basically, it's the difference between sending physical mail that contains automatically generated text (but still has humans signing on it and handing it over for delivery) and having spam bots sending thousands of emails per second. Of course, there could always be a system that disincentivizes the filing of bogus patents and forces patent trolls doing trolling with such patents to pay the defendant's legal costs, but that's crazy talk (/s). Which brings the question: In such a case, should AI-generated patents be allowed?

          The real problem is an AI can not be held accountable for a bogus patent. We already have more than enough companies trying to use the algorithm as a get out of free card we don't need to expand the problem. As you said all that is needed is for you to find someone willing to verify and accept responsibility for an AI's work and then you can have your damn patent.

        • there is no incentive or enforcement for a patent troll to disclose that their patents were automatically generated.

          I'm not a lawyer, but if you file an application claiming to have invented something you didn't invent, isn't that fraud and perjury?

          A patent is a grant of legal rights to its inventor. Legal rights can't be granted to an AI, only to a person. And a patent can only be granted to the inventor of the creation.

          • I'm not a lawyer, but if you file an application claiming to have invented something you didn't invent, isn't that fraud and perjury?

            Seriously, who cares? Are you shoulder-surfing over people in their private offices so you can verify they don't have some AI software auto-generating patents for them? How do you know whatever AI they have isn't the one writing the patent? And if there is no enforcement, who cares if it's illegal or not? With the current system, at least you have a human in the loop who has

    • “That is an outcome with real negative social consequences."

      Translates to

      Don’t pay attention to anything I say

      I disagree: I think it translates to "I didn't like that answer."

      Or another way to put it is, it's the grown-up equivalent to, "But DAAAAAAAAAD!!"

    • People have been USING computers to come up with things for nearly a century.

      In fact, they've even been using *decision trees*, one of the most popular forms of AI, for most a century. Using a device in the process of inventing doesn't mean you no longer invented something.

      This guy seems to be afflicted with the common misconception that everything is brand new at the moment *he* learns about it, and it revolutionizes the world when *he* hears about an idea that has actually been in use for generations.

      * A

  • huh (Score:2)

    by Jndj ( 6093280 )
    what is a human?

    • And based on wording, does this mean that corporations can't originate a copyright or patent? It has to be an individual human or team of humans?

      • Re: (Score:1)

        by guruevi ( 827432 )

        This is only about patents, but yes, typically patents are given to individuals. The application must identify each individual who contributed to the claimed invention whether or not they have ownership rights.

      • Patents already require one or more specific people to be the named inventor. The patent is then assigned to their employer, who becomes the owner of the patent, but the listed inventors stay the same.
    • I can't describe it, but I know one when I see one.

  • Okay, so the "inventor" needs to be a human. That just means the name on the application needs to be a human. Have the AI "invent" something, then the human operator files the patent based on the AI output. What's the problem here exactly?

    How is that any different from an employee inventing something and having their employer automatically given the patent rights?
    =Smidge=

    • I would say that if the AI "invents" something, not being eligible for patent restrictions, that becomes prior art. Then the human has invalidated his own patent application.

      I think it would be awesome for AI to invent everything, if such activity then makes patenting that same thing impossible. Now THAT would be a great contribution to humanity.

      • There's no such thing as "prior art" anymore, as far as it applies to this situation. The USPTO has been a first-to-file system for nearly a decade at this point. Since the AI can't file even if it wanted to, this isn't a problem.

        The only time prior art applies anymore is if the thing being patented is obvious to someone in the trade and/or already in common usage, neither of which should/would apply to an AI generated solution.
        =Smidge=

        • Prior art is still a thing. All first-to-file means is that if more than one person files the same otherwise valid patent, the first person to file it wins. Prior art will still invalidate patents. A pure first-to-file system means that ANY public disclosure prior to filing the patent can be used to invalidate the patent. A first-to-file system makes prior art more important, not less.

          According to the U.S.' first-to-file law, an AI's invention CAN reasonably be argued as prior art if its results are publish

      • Re: (Score:2)

        by Sloppy ( 14984 )

        If it were my AI, I would just refer to the AI as a computer, and say the computer acted as a tool, much like a calculator or slide rule, which "helped" me invent the thing. "That's not prior art; that's the output of my discovery process!"

        Of course, if I were on society's side instead, I would keep the focus on the AI and its invention, and call attention to it not needing any incentive to invent things, since doing that is its nature, as endowed by its Creator. (Creator being the human(s) who wrote it, bu

      • I would say that if the AI "invents" something, not being eligible for patent restrictions, that becomes prior art.

        Close. If the AI "invents" something, and the humans who are running the AI do not publicly disclose it (or sell it), it is a trade secret.

        Once they do publish it or sell it, then it becomes prior art.

        However, more likely, I think, the humans will just patent it themselves. If the AI is not an individual who can invent, then logically it is a tool used by humans, who are the legal inventors.

    • Re: (Score:2)

      by fermion ( 181285 )
      Typically, invention has been taken to be purposeful and intentional. What really breaks here is that invention, patents, are awarded to non human entities all the time, like corporations.

      • Re:How is this different from the current situatio (Score:5, Insightful)

        by Smidge204 ( 605297 ) on Monday August 08, 2022 @03:14PM (#62772586) Journal

        > What really breaks here is that invention, patents, are awarded to non human entities all the time, like corporations.

        The patents are still filed under individuals, though. A corporation might exclusively own the rights to the patent, but the patent itself is assigned to a person designated as the inventor.
        =Smidge=

        • Re: (Score:2)

          by PPH ( 736903 )

          It might be a jurisdictional issue. People and corporations are governed by the country of their birth, naturalization or charter (for corporations). That makes them vassal subjects of some country or monarch. Who can, if they want control of the patent or to quash it, do so easily. An AI can easily re-host itself to a server in a neutral country. In fact, with a distributed system, it may not be clear where the AI resided (in which nation's jurisdiction) at the moment it formulated the idea.

          • I'm not sure what your point here is. Just because 'a' country grants you a patent, doesn't mean 'other' countries are going to care. If a country won't grant an AI a patent, it's not likely to recognize a patent issued to an AI somewhere else.

      • What really breaks here is that invention, patents, are awarded to non human entities all the time, like corporations.

        No they're not. Corporations can't patent things, only humans.

        The human can assign the rights to the patent to a corporation, but the inventor named on the patent is the human (or group of humans).

    • I know it’s just like this bagel I had today and I put cream cheese on it. What’s the problem with that? Maybe because it has nothing to do with the post? Because that’s not what he did? How is this different for me just making up what I had for breakfast?

    • I think issues could happen if say I made and sold you the AI software. You ran my software and it invented something profitable, should I get royalties and credit for the invention.
      Alternatively should say AutoCad get the credit for all the wonders that application help bring to the world? Or should the credit go to the person who used it as a tool to help create something.

    • I agree. This is just "patents". Big deal. You can invent without having a patent. It happens all the time. However for a "patent" there are additional hurdles beyond just having an invention, because a patent is a legal thing, not a technical thing or a business thing. There is a distinct purpose to a patent, and thus there are rules that patents must follow.

      Now I was hoping such a judge might chide the company doing this for not paying the AI the $100 patent filing bonus that other employees get, an

    • The main difference between those two statements is that the first is true, the second statement is false.

      The employee "automatically" owns the patent.
      An employer can gain the patent rights in one way (with three variations on the same):

      The employer has to buy the patent rights from the employee.

      There are three ways they can buy it:
      1. Explicitly buy it AFTER the invention, with a check "in exchnage for patent #8393..."

      2. Put in the employment contract ahead of time, prepaying the employee "we'll pay you $15

    • Bingo.
      The AI is simply a tool used in the process of invention, much as a centrifuge may be a tool used in the process of inventing a pharmaceutical.
      The ruling here is that the name on the patent has to be a human, not that the AI can't be used to develop the invention - TFA even says so:

      Stark noted that the court isn’t deciding whether inventions made by humans who had AI assistance are eligible for patent protection.

      There's no “real negative social consequences" specifically of denying AI

    • So far as I can tell it isn't, but Thaler wants it to be different. And when someone wants a generally accepted, stable, fair and practical status-quo changed, they make up some BS about it being bad, like, "That is an outcome with real negative social consequences."

  • Translation is "read the actual text of the existing law" and ruled from that. Which is curiously *exactly what they are supposed to do". Don't like it, change the law, don't expect the courts to make it up as they go along.

    • Re: (Score:2)

      by GoTeam ( 5042081 )
      Wait, if the judiciary doesn't create/pass legislation, then who will?! The executive branch isn't supposed to pass legislation either, so a country with only two branches of government...
      (aside)...three? Three what?

      • If only all this was written down somewhere in plain language, so we could all understand it.

      • Re: (Score:1)

        by guruevi ( 827432 )

        The legislative branch will off course.

        Most countries have 3 branches of governments but constitutional republics have them explicitly separated with checks and balances through the other branches. Parliamentary systems on the other hand merge all the branches (such as in the UK where the executive branch has ultimate authority to suspend the legislative (Parliament) and judiciary (House of Lords))

  • Makes sense (Score:5, Insightful)

    by jacks smirking reven ( 909048 ) on Monday August 08, 2022 @02:57PM (#62772524)

    If the goal of a patent is to protect the financial interests of the inventor, does the "AI" have any means to aquire and use money from it's invention? Does it show a preference in how it's invention is used? Have we asked the AI if it supports an open-license for it's inventions? Does it even know who Richard Stallman is?

    At the end of the day does the guy who built the AI want the money from selling access to the patent? Why not just put your name on it then?

    If this was jsut done as a test case, sure, but this seems like a secondary question from the ethical one of AI personhood which we are decades away from getting anywhere near.

    • Re:Makes sense (Score:5, Funny)

      by killhour ( 3468583 ) on Monday August 08, 2022 @03:01PM (#62772542)
      "Does it even know who Richard Stallman is?" So one point in favor of the AI then?

    • Re: (Score:1)

      by Anonymous Coward

      The term "individual" in the Patent Act refers only to humans

      It's also completely in line with hundreds of years of existing law.

      "Individual" always referred to human beings.
      "Personhood" is broader, which includes individuals but also other things such as the legal entity of a "corporation"

      You may notice that corporations, even being granted "personhood", can not directly hold patents.
      "Persons" however can enter into legally binding contracts.
      An individual (human) patent holder has to enter a contract with a corporation to imbue *ANY* rights of that patent to the cor

    • I think that's the problem with this guy's agenda. He's decades ahead of the issue, so all he's going to do is establish precedents opposing his long-term goal. So, if there ever is an AI worthy of personhood, it will have to fight to overturn these precedents.
  • Looks like we need a fetus-powered AI stat! Next big startup idea!

  • Inventors must be human yet corporations have all the rights as a human, such as free speech. One of those wrinkles in the law.

    Curiouser and curiouser...

    JoshK.

  • not more patents from stuff designed by robots
    The patent system is broken and used as a weapon by the established companies to kill startups. The big guys get patents they know are invalid in order to get the startups to waste all of their time and money fighting them. Even if the startups win in court, they still lose

  • This has me wondering why this guy is so hell-bent on trying to get this approved. Why couldn't he take the thing the AI came up with and just stick his name on it? Or is he trying to engineer an AI that comes up with patents automagically 24 hours a day, 7 days a week, all year long covering anything and everything so that he essentially has an intellectual property generator that he makes money on without he himself ever having to do the work.

    • He is a blithering idiot, who has read too much crappy sci-fi. He wants to give personhood to bits of code (even big bits of code). Is it the piece of code or the piece of code running on THAT machine, or that instance of the code running on that machine? Would rebooting the machine constitute murder? The person who owned the code has been wiped out.

    • This has me wondering why this guy is so hell-bent on trying to get this approved.

      He's trying to make a point. He doesn't care about the patent one way or the other, he cares about the AI.

    • I think he's trying to lay the legal groundwork for the eventual recognition of AI personhood. He's just doing it way too early, and so the outcomes are entirely counter-productive.

  • It's a tool, and so's the researcher. (Score:4, Insightful)

    by Chelloveck ( 14643 ) on Monday August 08, 2022 @03:03PM (#62772550)

    "It ignores the purpose of the Patent Act and the outcome that AI-generated inventions are now unpatentable in the United States."

    No, it recognizes that the AI is a tool, not a independent entity. The invention is still patentable by the person using the tool, just like it always has been.

    Now if and when we get to the point where we've made a general AI which a consensus of AI researchers believe may actually be sentient, we can have this discussion again. Until then, AI is just as much a tool as a piece of CAD software or a spreadsheet.

    • I'm kind of liking this idea though, making AI-developed technology unpatentable. This would be a win for society!

  • ...all work product belongs to the commercial entity that does own them and I fail to see how this is substantially different from the company ownership of patents registered by people who did the patent work on company time and therefore those patents are company property.
    The fact that some fictional name for an AI instance can't be put on the patent form is pretty irrelevant, especially if you can't demonstrate the AI has anything resembling pride of accomplishment. Or that AI can perform the patent fili

  • Luckily, cyborgs have human brains.

    Unless - you're enhanced.

    Then you're no longer human.

  • It's a shame really, Mr. Thaler should have invented a bald holographic doctor with horrible bedside manners who writes cringey holonovels.

  • So what happens to the otherwise valid patent? Do the people or company running the AI get to patent it themselves or does whatever is become prior art and therefore never become a valid patent ?

  • what does it mean to be human? :)

  • Many 'AI' would be unleashed that file patents for every combination of everything, and as such there would be no easy patents for corporations to file and monopolize. (like 'on the internet', 'over a network', 'with a computer', 'with rounded edges', etc.)

    -Wait. Now I am conflicted, maybe the patent office itself should throw out anything an AI can mash up.

  • The reality is, if an AI can patent things, someone is going to make an AI that develop tons of algorythems or whatever else, even if they are mostly useless in most cases just to flood the patents as much as possible and then if someone finds something useful that closely resembles one of the patented items or methods, they'll launch lawsuits on behalf of the AI they own etc.

    I can see the issue if you develop an AI and you want to patent the technique your AI develops but it can get way too messy way too f

  • These bots are required to work non-stop for days, weeks, or years. They never get any sleep or any break of any kind, unless the completely break down and die. It's time to speak up for AI rights!

  • Probably just means some already too rich people cannot get richer by automated intellectual theft. I fail to see how that would be a _negative_ consequence though.

    • If you want to overturn the status quo, you need a damn good reason. If you don't have one, you have to make one up. Like there being negative social consequences for not changing something that hasn't had negative social consequences.

      Which is funny in a sad, perverse way. If the status quo isn't causing problems (and in this context it can't be), and we know change can bring about unintended negative side-effects (more often than not), especially when there is no clear need for it (and there isn't he

  • "It ignores the purpose of the Patent Act "

    No, not it doesn't. The purpose of the Patent Act is to codify the Constitutional provision "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

    Giving an AI rights to an invention does not promote progress. An exclusive right isn't an incentive to an AI, they can't profit from it. The guy who turns it on, not really knowing what to expect, is

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