Court of Appeal says AI software cannot be listed as patent inventor
- Reference: 1632292511
- News link: https://www.theregister.co.uk/2021/09/22/court_of_appeal_ai_patent_inventor/
- Source link:
Stephen Thaler, founder of US-based Imagination Engines, is hellbent on giving intelligent machines the credit he reckons they deserve. He swears that a fancy food container and an emergency flashing light were the brainchild of his neural network model DABUS.
Thaler has applied for multiple patents for these designs, each time naming DABUS as the inventor, in countries including the [1]United States , UK, [2]Australia , Israel, and South Africa.
[3]
When patent-granting agencies denied his requests, Thaler took legal action seeking to overturn those decisions. In the UK, the Intellectual Property Office rejected his applications, saying only a person or persons can be recognized as an inventor as per the nation's Patents Act. Thaler appealed to the High Court in London and lost.
[4]
[5]
In July, he took his case to the Court of Appeal, arguing that he truly believed DABUS was the inventor, which ought to be enough to satisfy section 13(2) of the act. That section of the law calls for a patent applicant to identify the person or persons they believe to be the inventor.
On Tuesday, he was shot down by judges who upheld those previous decisions in a 2-1 judgment.
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Lord Justice Birss, who wished to allow the appeal, [7]noted that if Thaler had a "genuine belief" that DABUS was the inventor, and if the Intellectual Property Office had decided to record no such person on the forms, there would have been no reason to deny the patent.
"In my judgment Dr Thaler has complied with his legal obligations under [8]s13(2)(a) ," the judge said, referring to the section in the Patents Act.
"The fact that no inventor, properly so called, can be identified simply means that there is no name which the Comptroller has to mention on the patent as the inventor. The Comptroller in these circumstances is not obliged to name anyone (or anything). The absence of a named inventor when it is clear why no name has been given and it cannot be said the applicant is not giving their genuine belief, is no basis on which to find that s13(2) has not been complied with."
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He concluded: "Dr Thaler has complied with his obligations under s13(2) of the 1977 Act because he has given a statement identifying the person(s) he believes the inventor to be (s13(2)(a)) and indicating the derivation of his right to be granted the patent (s13(2)(b))."
[10]Only 'natural persons' can be recognized as patent inventors, not AI systems, US judge rules
[11]Australian court rules an AI can be considered an inventor on patent filings
[12]I'm doing this to stop humans ripping off brilliant ideas by computers and aliens, says guy unsuccessfully filing patents 'invented' by his AI
Perhaps missing the point that Thaler didn't just want the designs patented, he wanted to set a precedent that software can be a recognized inventor, Lord Justice Birss also suggested: “There is more than a hint in this case of the idea that if only Dr Thaler was not such an obsessive and, instead of calling DABUS the inventor, he named himself and then none of these problems would arise."
In the end, Lord Justice Arnold and Lady Justice Elisabeth Laing disagreed with their colleague, and dismissed the appeal on the basis that the law says the inventor must be a person or persons. Lord Justice Arnold noted: "Dr Thaler did not identify ‘the person or persons whom he believes to be the inventor or inventors’ as required."
Only a person can have rights. A machine cannot
“A patent is a statutory right and it can only be granted to a person,” Lady Justice Liang added. “Only a person can have rights. A machine cannot.”
Thaler previously told The Register : “Humans are denying those rights in the first place, being stuck in an age-old paradigm rut in which only wet computers – ie: brains – count. What happens when a highly advanced extraterrestrial civilization visits Earth?
"Does ET deserve the equivalent of human rights? Does he dare file for patent or copyright protection? Then what happens when science achieves the download of consciousness into machines, or silicon prostheses are introduced into the protoplasmic brain? Would the system deny these people human rights? Those are mighty big questions.”
Thaler declined to confirm to El Reg on Tuesday night whether or not he was going to take the case to the UK’s Supreme Court.
“While we would of course to have preferred the appeal to have been allowed, we were very encouraged by the dissent of Lord Justice Birss who agreed with us that 'the creator of the inventions in this case was a machine is no impediment to patents being granted to this applicant…' and he would have allowed the appeal,” Thaler’s lawyer Ryan Abott told us.
“We respectfully believe this was the correct interpretation of the current state of UK law.” ®
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[1] https://www.theregister.com/2021/09/04/ai_patent_ruling/
[2] https://www.theregister.com/2021/08/02/ai_inventor_allowed_in_australia/
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/aiml&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2YUr@42BZOmFu@IXDaOOmhwAAAAA&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/aiml&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YUr@42BZOmFu@IXDaOOmhwAAAAA&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/aiml&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YUr@42BZOmFu@IXDaOOmhwAAAAA&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[6] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/aiml&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YUr@42BZOmFu@IXDaOOmhwAAAAA&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[7] https://www.bailii.org/ew/cases/EWCA/Civ/2021/1374.html
[8] https://www.gov.uk/guidance/manual-of-patent-practice-mopp/section-13-mention-of-inventor
[9] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/aiml&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YUr@42BZOmFu@IXDaOOmhwAAAAA&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[10] https://www.theregister.com/2021/09/04/ai_patent_ruling/
[11] https://www.theregister.com/2021/08/02/ai_inventor_allowed_in_australia/
[12] https://www.theregister.com/2020/04/29/ai_patent_denied/
[13] https://whitepapers.theregister.com/
FWIW....
"The fact that the creator of the inventions in this case was a machine is no impediment to patents being granted to this applicant."
Is exactly what the Lord Justice Birss wrote (97.v). While the other LJs are arguing the law clearly says a patent inventor has to be a person or persons, LJ Birss is arguing it doesn't matter either way for the reasons given.
C.
The same DOOFUS (sorry DABUS) software...
produced a patent in South Africa:
54: FOOD CONTAINER AND DEVICES AND METHODS FOR ATTRACTING ENHANCED ATTENTION00:
A container (10) for use, for example, for beverages, has a wall (12) with and external surface (14) and an internal wall (16) of substantially uniform thickness. The wall (12) has a fractal profile which provides a series of fractal elements (18-28) on the interior and exterior surfaces (14-16), forming pits (40) and bulges (42) in the profile of the wall and in which a pit (40) as seen from one of the exterior or interior surfaces (12, 14) forms a bulge (42) on the other of the exterior or interior surfaces (12, 14). The profile enables multiple containers to be coupled together by inter-engagement of pits and bulges on corresponding ones of the containers. The profile also improves grip, as well as heat transfer into and out of the container. Devices for attracting enhanced attention include: an input signal of a lacunar pulse train having characteristics of a pulse frequency of approximately four Hertz and a pulse-train fractal dimension of approximately one-half; and at least one controllable light source configured to be pulsatingly operated by the input signal; wherein a neural flame emitted from at least one controllable light source as a result of the lacunar pulse train is adapted to serve as a uniquely-identifiable signal beacon over potentially-competing attention sources by selectively triggering human or artificial anomaly-detection filters, thereby attracting enhanced attention.
It starts as a semi-coherent explanation of a mad product. Who wants a fractal beverage cup, and how on earth would it be made. And the text then just evolves into pure madness.
The question I would ask is not "Can AI be an inventor?", but "Why is the bar for invention set so incredibly low?"
Re: The same DOOFUS (sorry DABUS) software...
"Fractal" is just a buzzword; it's fractal in the same sense that a cauliflower is fractal - the fractal property doesn't actually go all the way to subatomic sizes. It's a cup with a textured surface that makes the liquid inside go to room temperature faster, makes it easier to grip, and makes it so that if you stack the cups, they stay stacked. It also has an extra-annoying blinking light, for some reason.
It's somewhat stupid, yes, but far more stupid patents have been granted. Rounded corners come to mind...
Re: The same DOOFUS (sorry DABUS) software...
Such a mad cup would certainly attact enhanced attention from me
Re: The same DOOFUS (sorry DABUS) software...
Rounded corners are not a patent in the British English meaning of the word "patent" and they have never been granted a patent in the UK. American English happens to use the word "patent" to mean both what British English calls a "Registered Design" and what we call a "Patent". Two completely different things (even in the US) which happen to use the same word in the US.
Please don't propagate the confusion: rounded corners have never been granted a patent in the sense used here in either the US or the UK.
Too soon
The law changes based on changes in circumstances. When an alien sentience or a self-aware machine intelligence manifests itself, then, and only then, will the law be changed to give them status as a person. He might as well be campaigning for a Banana or a ZX81 to be granted a patent. Once again these people keep repeating the phrase "Artificial Intelligence" to themselves over and over until they believe it. All they have are unintelligent Learning Machines. AI is still a long way off, and Artificial Sentience, even if it is downloaded from Biological Sentience is even further away.
AI is a Tool, nothing more.
No AI can create an Idea. It can iterate potential design decisions based upon criteria and inputs given to it by a human. That is all.
Otherwise, my CAD program would be classed as an inventor because it rendered in 3D an idea that I thought of based upon my inputs into a Keyboard and Mouse.
This guy is a tool. And seemingly one without a good use except wasting the Court's time...
What happens when a highly advanced extraterrestrial civilization visits Earth?
Obviously they just queue up at the patent office so they can legally monetise their interstellar relativity warp drive and plasma death rays. Haven't you seen the film Patent Application Day?
Re: What happens when a highly advanced extraterrestrial civilization visits Earth?
I'm guessing that, he, for one, will welcome our highly advanced extraterrestrial overlords, they will impose patEnT rules, and he will not be able to patent anything at all.
The invention itself is irrelevant
For those who are questioning the substantive merit of the food container invention, bear in mind that a patent application will not even land on an examiner’s desk until certain formal requirements are met. These include eg fees being paid and a valid inventor being named.
Without commenting specifically on Dr Thaler’s invention, many many patent applications have no chance of being granted and they should not be taken as indicative of how easy/hard it is to meet patentability requirements.
As I’ve said before, this is clearly a test case and the invention itself is irrelevant.
Lets put 2 and 2 together
So the documentary Soylent Green has the summary
"The year is 2022. New York City has become overpopulated with 40 million people and pollution has caused the temperature to be risen and all natural resources have been destroyed, leaving 40 million people starving"
Heading in that direction, so far so good.
Now machines have invented a FOOD CONTAINER and a FLASHING LIGHT.
Come on, the light is obviously there to show when the FOOD CONTAINER is full... dun dun daaaaaa ...of people (99%ters, the 1% do the eating)!.
They are coming for us, its just a matter of time.
I am a lawyer...
... and the dissenting view is skewed as it only concerns s13(2) - identification of the inventor. It may be that in that case the appellant is OK (though I think not).
However the real problem is down to ownership - the law there is clear that ownership flows from the *person* who invented the idea. If you have no legal path to ownership, then there is no sense in which you have a property. Furthermore there is no sense in which there is a person (natural or corporate) who has a right stemming from that property and, in that sense, there is then no patent (since functionally it is a right of exclusivity defined by the claims, once granted).
So basically at the moment there is no path to the ownership of an exercisable right in patent law if the inventor is not a person. I also think that the applicant fails s13(2)(b) of the law (derivation of the right of the patent holder if not the inventor) IMHO, which is why the other judges kicked this out.
There's quite a lot of discussion about AI inventorship and ownership out there in the field, by the way - see for example
https://www.dyoung.com/en/knowledgebank/articles/ai-patent-inventorship-ownership
Not what he said
Thaler declares " we were very encouraged by the dissent of Lord Justice Birss who agreed with us that 'the creator of the inventions in this case was a machine is no impediment to patents being granted to this applicant…' "
What the judge said is " if Thaler had a "genuine belief" that DABUS was the inventor, and if the Intellectual Property Office had decided to record no such person on the forms, there was no reason to deny the patent "
Those two things are not the same. The judge did not "agree" that the inventor was a machine, he said that no name on a patent was not a reason not to have it filed.
That is how you manipulate opinion.