Court of Appeal says AI software cannot be listed as patent inventor

The Court of Appeal of England and Wales this week dismissed a man’s plea to have his AI system recognized as the inventor of two patents. Stephen Thaler, founder of US-based Imagination Engines, is hellbent on getting intelligent machines the credit he reckons they deserve. He swears that a fancy food container and an …

[Pascal Monett]

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.

[diodesign]

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.

[John Brown (no body)]

Re: FWIW....

I respectfully disagree. I think in this case, the "applicant" referred to is the human being, not the machine, the Judge is merely stating that it doesn't matter what invented the item, so long as the applicant is a person. I think the judge made a careful distinction between the "inventor" and the "applicant".

[cornetman]

Re: FWIW....

Lord Justice Birss's comment does not in anyway contradict the point.

He is merely stating that the fact that the inventor was a machine is not an impediment to the filing of the patent: he does not specifically say that the machine could be named as the inventor on the patent though. The patent could have been invented by the machine, yet the owner of the machine credited on the patent.

It is a fine point but I think that Pascal's comment is valid. The Judge has chosen his words very carefully.

[Snake]

Re: Careful words

Regardless of Lord Justice Birss's carefully worded comment, he is still fundamentally wrong (in the long-term eyes of the law).

The topic was decided upon by the 2 opposite justices based upon the legal doctrine of person. Fundamentally, the potential issue is this: If the machine is granted the patents, and the patents are challenged at a future date, who exactly will come to defend the patent?

The machine won't, and can't, defend the patent in court because it is not [yet] an independently-thinking being. Any and all contest to the patents, if issues, would need to be defended by Dr. Thaler. The machine could not appear in court and take the witness box.

If a corporation is granted a patent a representative, granted power of attorney, by the legal structure of the corporation can appear in court as a proxy. A machine can't even grant a power of attorney as, not only does the machine not have that legal standing, the machine is not capable of the independent and self-aware thought processes necessary to make such a legal declaration stand up under any possible legal examination.

IMHO Dr. Thaler is trying to get his machines accepted for patent approval under the guise of expanding that legal umbrella in the future. I.e., he expects to be able to make his computational networks (which is all "AI" qualifies under at this point in history) work in other fields, and he expects to allow the machines to automatically claim the full legal rights of these creations with him getting the automatic benefits of things like licensing costs thanks to his ownership of the machines.

But that itself is a riddle, as an owned machine is not self-directing, forget self-actualizing. The only reason the machine is processing your calculations (again, at this point in history) is because you programmed it to do so. A human created the calculations, input the data structures, and hit the "Process" key. The fact that this complex machine did a huge number of calculations to transform the data set, maybe beyond the ability of the human programmer to instantly understand the outcome, did not grant that machine sentience and did not grant that machine self-awareness.

Come back in decades, maybe a century, to revisit this topic. It is not that, theoretically, a machine won't become sentient and self declaring. It is only we aren't to that point in development yet.

[bombastic bob]

Re: Not what he said

That is how you manipulate opinion.

It's how activists do things, yeah. "lost the case" = "the judges 'agreed' that..."

(spinning it like the cartoon Tasmanian Devil)

[gobaskof]

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?"

[Filippo]

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...

[89724102172714182892114I7551670349743096734346773478647892349863592355648544996312855148587659264921]

Re: The same DOOFUS (sorry DABUS) software...

Such a mad cup would certainly attact enhanced attention from me

[Graham Cobb]

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.

[David Nash]

Re: The same DOOFUS (sorry DABUS) software...

A cup? I interpreted "food container" as a tupperware box* and wondered why they needed to be stuck together.

As for the flashing light, who wants their lunch or coffee to flash, and why?

*Other food containers are available.

[John Brown (no body)]

Re: The same DOOFUS (sorry DABUS) software...

It sounds more like what the US calls a "Design Patent" and we in the UK would call a Registered Design". It's not an invention, it's just a shape and colours.

[bombastic bob]

Re: The same DOOFUS (sorry DABUS) software...

when I put liquid in a cup I do NOT want it going to room temperature FASTER...

I want hot tea and coffee to STAY hot, iced tea and soda and beer to STAY cold, and if i put cubes in it I want them to MELT SLOWER. What's the point of a cup that gets to room temperature FASTER?

(das blinkenlights may be ok, if you can put it in the dishwasher and not destroy it)

[doublelayer]

Re: The same DOOFUS (sorry DABUS) software...

"It's somewhat stupid, yes, but far more stupid patents have been granted."

That is if we're all ignoring whatever a "neural flame" is and why it's in here. With my astute understanding of none of this, it sounds to me as if this feature is a light which you notice as particularly associated with this container, so that if you forget that the container with the light on is the one sending the signal, you will remember that the one that flashes three times a second is the third from the left. Why a container that doesn't, according to its patent, contain any sensors or other technology to register events needs to send a signal to the user is an exercise left to the patent examiner.

Calling a LED anything with "neural" in it is one of those things that instantly tells me that the person who wrote it is scamming me, clueless, or both. I'll give this guy a special exemption as it's his software who wrote it, but that doesn't help the case at all.

[Anonymous Coward]

Re: The same DOOFUS (sorry DABUS) software...

"The profile also improves ... heat transfer into and out of the container. "

He needs to go big, and apply for a meta-patent that turns bugs into patentable features.

[Big_Boomer]

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.

[Anonymous Coward]

@Big_Boomer - Re: Too soon

Anyway, the AI must wait in line behind other sentient, self-aware, intelligent beings like chimpanzees, dolphins and even octopuses, all still waiting for recognition of their status as person.

[JDX]

Re: @Big_Boomer - Too soon

Have they invented many things?

[doublelayer]

Re: @Big_Boomer - Too soon

That depends. Real inventions of the kind that would advance the society of them and/or other sentient creatures, no. But they do use a lot of tools which we didn't give them, and given the quality of a lot of patent systems, I think they probably could get a patent accepted for the various rock and stick-based tools that they know how to make. We don't know how to make them as well because we don't have much use for them and we can build a better one with electronics, so probably no competing patents have yet been filed.

[lglethal]

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...

[Andy The Hat]

Re: AI is a Tool, nothing more.

I think you'll find the software is a tool, he's just an idiot.

[Howard Sway]

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?

[Empire of the Pussycat]

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.

[I am David Jones]

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.

[bombastic bob]

Re: The invention itself is irrelevant

"Test Case" = "How can we manipulate the system today?"

[JDX]

Re: The invention itself is irrelevant

>"Test Case" = "How can we manipulate the system today?"

No. The clue is in the words. It's a test. To find out the asnwer.

[colinb]

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.

[Anonymous Coward]

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

[bombastic bob]

Re: I am a lawyer...

would you agree that this might be "step 1" in demanding future "rights" and, of course, royalties, when his "AI" "invents" things? Just curious. it's how I see activists in general. They do "step 1" to get their feet in the door, then incrementally pervert the law through B.S. judicial decisions until they're raking in the dough and empowering themselves even more. And, of course, the APPEAL is where "the precedent" happens, so the original case needs to be as frivolous and/or BOGUS as possible without making it an utter failure.

(the patent systems of the world have been perverted enough, no need to make it worse by including an AI as an 'inventor')

[Scott Broukell]

Let us suppose that an AI system were to be granted a patent, my question would be: What should happen to the assignment of that patent ownership if/when said AI system undergoes an update/upgrade procedure which changes the nature of the underlying programme code such that it is no longer recognisable as it's former instance and no longer behaves in a manner entirely equitable with it's former instance/system?

[adam 40]

One might ask the same question about when a human inventor gets educated, or suffers a mental breakdown. They are hardly the same consciousness, but the body is recognised in law to be the same person.

While we're on the subject of Person, can a company be a Person for the purposes of this process?

[Anonymous Coward]

@adam 40 - With their humongous wealth

Amazon can be whatever it wants, including a rich, powerful person.

[David Nash]

I think we need an over-arching law that says that all other laws which are, until now, applied to people, shall continue to apply only to people, and if a machine or other non-person apparently falls into the scope of a law, then the owner or controller, if there is one, is the applicable person, otherwise it doesn't apply at all.

When/if such day arrives that true AI or intelligent animals or aliens are present, we can re-think if needed.

[Anonymous Coward]

Preserving moral agency is important. We cannot move to a future where there is no human left in the loop of decisionmaking, where everyone just points at a metal box and shrugs their shoulders.

[Anonymous Coward]

Why is a patent?

The reason for patents is so that the patent holder can reap the fruits of their labor for a period of time.

A device, be it an AI or a CAD program or pen and paper, cannot reap any rewards. When an AI program can decide what fees to charge for licenses and where to spend the fees, then we can readdress this.

For now, this is just a publicity stunt.

[AnonEMusk Noel]

Re: Why is a patent?

Right. Technically i would argue the pen was the one filling out the application. If indeed said application was a pen and paper variety. Where will it all end!

[Rich 2]

Why?

I don’t understand the motivation for trying to get this through the court.

If it was the AI system applying to the court then fair enough. But why would someone (a human) push for this?

I can’t help thinking there’s some hidden loophole that said human is hoping to exploit - one that can’t be exploited if the inventor is himself. So by extension, I think it’s a good idea to deny the application. Quite apart from it being silly

[Anonymous Coward]

Re: Why?

So AI doesn't get the credit but what about the blame? If your car's AI system fails and you run over a cyclist one night then nobody is to blame I guess, or if the AI spots the wrong car and then blows it up when it gets home it's just an AI bug?

[Rich 2]

Re: Why?

But if ANY system fails, the fault never lies with the inventor. The fault lies with either the manufacturer or operator of the system, depending on what it is.

So I don’t think that’s the loophole I seek

[cornetman]

I can see what Thaler is trying to do here, but his approach is flawed in my belief.

The obvious solution would be for us to determine if a particular instance of AI possesses "personhood".

If we truly believe that an AI system is sufficiently self aware, we can merely declare in law for them to have the rights of a person and the law will continue to work as it did before.

[doublelayer]

His approach is not the only thing that's flawed. His idea is also flawed, as the program isn't sentient and he knows it. In some ways, I'd like him to win if only for the law to now conclude that his not-a-person program, having been declared a person to own a patent, has been illegally enslaved for which he will now be charged. Until that aspect makes sense, the other ones don't either.

[Rich 2]

I think you hit the ball on the head there. Every bit of software seems to be AI these days. Except it’s not. It’s not even vaguely close. It’s not “intelligent” in any meaningful way. It’s certainly not sentient. What it is is just plain old boring software. All the AI bollocks is just that - bollocks.

[DS999]

Allowing software to own a patent would set a bad precedent

The next step would be for Disney to transfer all their copyrights to a software program, and then "life of the author plus 70 years" would effectively be infinite as long as they keep that original program alive in some emulator of an emulator of an emulator in the year 100,000 A.D.

Not that they don't already get infinite copyright by working the legislative system, but this would save them all those millions they must spend on bribing them every few decades to extend copyright protection anytime Mickey Mouse is at risk of losing copyright protection.

[Brian 3]

how dare she

how dare she say only a person can have rights when clearly corporations have more rights than people!

[The_Idiot]

So what if...

... the AI declares itself a Corporation? And that it is an employee of the declared Corporation, and that the subject of the patent was developed as part of that employment? Muahahahahahahahahaha!

Ahem. I'm sorry. And now, back to our normal service.... (blush)