Should We Require Human Inventorship? Submit Your Amicus Brief by March

“If an uninvolved third party has opinions as to whether a patent office should prohibit, permit, or require an artificial intelligence algorithm to be listed as an inventor, the opportunity for submitting thoughts (e.g., via an Amicus Brief or Third Party Observation) is now.”

https://depositphotos.com/191571306/stock-photo-idea.htmlPatent systems around the globe offer a quid pro quo that exchanges limited monopolies for disclosures of inventions. Most patent filings list: (1) the inventor(s); and (2) the applicant. The applicant may be an assignee (e.g., company, university, organization, etc.) with rights to seek patent protection on innovations that were identified during employment and that were within a scope of employment. Frequently, the assignee is a current or former employer of the inventor(s).

In some jurisdictions (e.g., in the United States), the inventor(s) hold the rights to prosecute the patent application and assert any resulting patent unless and until the inventor(s) assign those rights to another entity (which is frequently done in employment and work?for?hire contracts). In some jurisdictions (e.g., the European Union), it is presumed that the party that applied for a patent holds the rights to the patent application.

Thus, it is well-established that non-human entities may be the applicant, assignee, and/or owner of a patent. However, it is not well-established that a non-human entity may be an inventor on a patent applicant. Multiple patent offices (e.g., USPTO, UKIPO, and WIPO) have been considering what the standard in this respect should be.

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The DABUS Examples

Recently, this issue has been pressed by Dr. Stephen Thaler and his legal team (led by Ryan Abbott). Dr. Thaler had applied for multiple patents without listing any human inventors in the application. The assertion was that an artificial intelligence algorithm, named Device for the Autonomous Bootstrapping of Unified Sentience (DABUS), identified each of two inventions. DABUS includes multiple neural networks (each trained in a given linguistic subspace) that are dynamically connected using controlled chaos. Further, DABUS includes a novelty filter to predict which chains of neural networks represent novel sentiments and a foveator neural network to predict which chains represent sentiments having a target utility. One of the patent applications was for a food container with walls having fractal profiles (which may prevent stacked containers from sticking to each other). Another of the patent applications was for a warning light that flashed with a temporal sequence (having a particular fractal dimension) predicted to be particularly effective in grabbing attention of a person.

Multiple patent offices have asserted that the DABUS patent applications did not comply with patent requirements due to the absence of a listing of a human inventor. In the United States, the USPTO rejected U.S. Patent Application Numbers 16/524,350 and 16/524,532, contending that artificial intelligence (AI) systems cannot be listed or credited as inventors on a U.S. patent. One of these decisions was published and states that an “inventor” under current patent law can only be a “natural person.” The USPTO explained that the relevant statutory provisions governing patents consistently refer to inventors as natural persons and interpreting the term “inventor” to include machines “would contradict the plain reading of the patent statutes that refer to persons and individuals.” The USPTO also referred to several Federal Circuit precedents to support the conclusion that an inventor must be a natural person. With reference to Univ. of Utah v.Max-Planck-Gesellschafl zur Forderung der Wissenschaflen e. Vthe USPTO explained that the Federal Circuit has ruled that a state could not be an inventor because inventors are individuals who conceive of an invention and conception is a “formation of the mind of the inventor” and “a mental act”. The USPTO reasoned that “conception—the touchstone of inventorship—must be performed by a natural person.” The Applicant has appealed these rejections to the Eastern District of Virginia (E.D. Va.).

This ruling by the USPTO followed similar stances adopted by the European Patent Office (EPO) and the UK Intellectual Property Office (UKIPO), each of which rejected patent application(s) that designated DABUS as the inventor. Under the European Patent Convention (EPC), the rules require the patent application to designate the inventor in terms of their family name, given names and full address. In its DABUS decisions, the EPO considered that the interpretation of the rules of the EPC led to the conclusion that the inventor designated in a European patent had to be a “natural person.” The EPO explained that inventorship conferred various legal rights, but that to exercise them “the inventor must have a legal personality that AI systems or machines do not enjoy”. The Applicant has appealed these rejections to the Board of Appeals at the EPO.

In the UK, patent law rules around inventorship are expressed somewhat similar to the U.S. The inventor is said to be the “actual deviser” of the invention. According to case law, there are two requirements underlying this concept. First, they must be a natural person. Second, they must have contributed to the inventive concept. The UKIPO’s DABUS decision centered on the first requirement and came to similar conclusions to the EPO. Referring to the rule and legislative framework that also underlies the EPC, the UKIPO agreed that a natural person had to refer to a human.

The decision of the UKIPO was reviewed in the England and Wales High Court (Patent Court) by Mr. Justice Marcus Smith, who held that the grounds of appeal fail and Dr. Stephen Thaler’s appeal must be dismissed. Mr. Justice Marcus Smith explained:

  1. Although the IPO rightly warned against over-generalisation, I am quite prepared to accept that there is a general rule that the owner of a thing is owner of the fruits of that thing. Thus, the owner of a fruit tree will generally own the fruit produced by that tree.
  2. The problem – as the passage from Copinger quoted above illustrates – is that such rules need to be framed with a degree of care and specificity, at least where the rules regarding the property in question are statutory. No such rules have been framed in the context of patents, the statutory regime for which is contained in the Patents Act 1977.
  3. Moreover, in the context of patents, there are particular difficulties. That is because – unlike in the case of the hypothetical fruit tree or, indeed, copyright – merely inventing something does not result in a patent being granted to the inventor. As has been seen, in order to be granted, a patent must be applied for – and that must be done by a person. It is therefore quite impossible to say that simply because (i) DABUS has invented something and (ii) Dr Thaler owns DABUS, Dr Thaler is entitled to the grant of a patent. There must either be an application by the inventor within section 7(2)(a) (which cannot be made because DABUS is not an inventor nor a person) or the inventor must have transferred the right to apply enabling Dr Thaler to apply under one of section 7(2)(b) or (c) (which again cannot be in this case).
  4. It would be far easier to contend that Dr Thaler was entitled to the grant of a patent pursuant to section 7(2)(a) of the Patents Act 1977, on the ground that he (Dr Thaler) owned the machine that did the inventing. That would actually be a much closer analogy to the general proposition advanced by Dr Thaler that “if you own the machine, you own the output of that machine”. However, as I have noted, this was not a contention advanced by Dr Thaler: indeed, it was positively not advanced.

Consequences and Questions

What is the potential consequence of these cases? Consider again the fact that many intellectual property systems are requesting input as to whether/how to respond to situations where artificial intelligence may contribute (in a manner that may have traditionally been considered to be “to the conception of”) an invention. Should entities be allowed to list the AI algorithm as an inventor? Should entities be required to list the AI algorithm as an inventor? Should the requirement of listing inventors be abolished entirely?

The DABUS cases have the potential to reshape the ownership of patents across the world.

If initial ownership is granted to algorithms: How will society adapt (potentially through contracts) with increasingly powerful software that is developed by one entity and licensed or sold to another entity? How will we distinguish between a human’s conception of an invention and a machine’s contribution that displaces part or all of such conception? How will we respond to computer code that is dynamically changing in response to edits from many programmers and that has capabilities that evolve due to an ever-changing big-data set?

However, if the “inventive” contribution of algorithms is not recognized: Might we have some entities claiming undue credit for inventions? May some entities choose not to develop or commercialize an innovation due to a lack of the possibility for market exclusivity? Would the development of more powerful artificial intelligence algorithms or applications be thwarted due to reduced market potential?

Have Your Say

The hearing date for the U.S. DABUS case is set for March 29, 2021. Thus, it is reasonably likely that amicus briefs submitted by mid-March will be considered. In Europe, the EPO has until May 1, 2021 to submit comments. Thus, it is reasonably likely that third party observations submitted before that date will be considered.

If an uninvolved third party has opinions as to whether a patent office should prohibit, permit, or require an artificial intelligence algorithm to be listed as an inventor, the opportunity for submitting thoughts (e.g., via an Amicus Brief or Third Party Observation) is now. While it is true that such opportunities may arise again as these decisions are appealed (which the authors predict they will be), outlining the discussion points at this stage may be particularly advantageous. The amicus may have the opportunity to shape the discourse, be one of few perpetual “friends of the court”, and make an impact on the outcome of cases of significance and on the development of patent law.

We recommend that parties who regularly use or develop AI in their innovation pipelines consider this opportunity. The authors acknowledge that there is a wide spectrum in terms of the degree to which AI may be involved in an invention pipeline. In some instances, a first party may identify a problem and a target type of solution and use an AI algorithm (coded by the first party or by another party) to generate a solution of the target type for the problem. As AI advances, it is conceivable that a problem identified by a human may become of a higher level of generality, that an AI algorithm may itself identify more specific problems to solve to address the general goal, and/or that an AI algorithm may be able to itself detect when a solution is sufficiently new and useful to justify potential patent pursuits. The DABUS cases have the potential to influence whether and/or how any party would be allowed to pursue patents in these latter instances. Thus, the authors submit that it may be particularly important and helpful to the courts to receive input from “friends” (via an amicus brief or Third Party Observation) that dives into the current power of artificial intelligence algorithms, the potential capabilities of artificial intelligence algorithms, and/or how various inventorship requirements (that may prohibit, permit, or require listing an AI algorithm in defined circumstances) have the potential to influence innovation.

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The Author

Kate Gaudry

Kate Gaudry , Ph.D., is a partner at Kilpatrick Townsend & Stockton LLP. She focuses her practice on patent prosecution, with an emphasis on software, computer systems, and quantitative biology technologies. Dr. Gaudry also routinely performs statistical analysis of clients’ patent portfolios to identify effective prosecution strategies. Her research and data focus was recognized when she was one of five attorneys across all practice areas to be selected for LexMachina’s and Law360’s Data-Driven Lawyer award in its inaugural year of 2018.

For more information, or to contact Dr. Gaudry, please visit her firm profile page.

Kate Gaudry

Rodney Rothwell is a partner in Kilpatrick Townsend’s Washington, D.C. office. Rodney focuses his practice on US and foreign patent preparation and prosecution; post grant proceedings both domestic and foreign; opinions concerning patentability, invalidity, non-infringement, prior user rights, and freedom to operate, IP due diligence, and IP portfolio strategy and management. He has represented clients in a wide range of technologies typically at the intersection of biology and software with a focus on artificial-intelligence and computational-biology technologies.

Kate Gaudry

Aarti Shah is an intellectual property partner in Kilpatrick Townsend’s Washington, D.C. office. Aarti focuses on patent litigation involving a wide range of technologies across many industries. She has litigated cases relating to patents, trademarks, and trade secrets, with a particular focus on proceedings before the International Trade Commission. Aarti earned her J.D. from Georgetown University Law Center and A.B. from Harvard College.

For more information or to contact Aarti, please visit her Firm Profile Page.

Kate Gaudry

Dario Machleidt is a patent litigation partner in the Kilpatrick Townsend Seattle office. He has chaired several jury trials and an International Trade Commission hearing. His experience includes litigating cases involving a diverse array of technologies, ranging from software and medical devices to biotechnology and pharmaceuticals. Dario has litigated patent cases at all levels of the federal judiciary, including the Federal Circuit and U.S. Supreme Court. He received a B.S. in physics from the University of Washington and his J.D. from the University of Washington School of Law.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 48 Comments comments. Join the discussion.

  1. Anon February 11, 2021 7:24 pm

    I would be LESS impressed to see more of the same views being expressed and MORE impressed by responses to already expressed views being engaged.

  2. PAUL V MORINVILLE February 11, 2021 8:55 pm

    It is unfair not to include AI and it should be allowed to submit a brief.

  3. Stephen Potter February 12, 2021 5:53 am

    My feeling is that, any invention that is novel, not obvious and industrially applicable should be made available to the the public and should be protectable in a patent regardless as to how it was created.

    The objections to applications that are stated to be made in a non-human way seem to me to be simply a procedural problem and will be forced to disappear in time by some creative adjustment of the regulations that will also have to cover the ownership of such inventions…

    Even the law must move forward!!

  4. MaxDrei February 12, 2021 7:32 am

    As far as I know, a machine cannot own property, only a human or corporate personality can do that.

    Apart from the question who is the owner of an AI invention though, the next question up is how to define the PHOSITA, in the case of an AI invention. What is “ordinary skill” and is the PHOSITA in every case a “person”? Should lawyers be thinking about how they might depose an AI?

  5. Stephen Potter February 12, 2021 8:10 am

    Surely, MaxDrei, the truth is that PHOSITA has been replaced in practice by MSITA – Machine Skilled In The Art… for all searching today, even though a human examiner may be putting his/her name on the final document…?

  6. Anon February 12, 2021 9:22 am

    I took Paul’s point at post 2 to be a little tongue in cheek, but it brings to me the thought of the possible difference between full sentience (with aspects of volition), and the lesser aspect — to purposefully play on selected words — of being a devisor.

    Important wrinkles — notwithstanding calls to IGNORE the fundamental first point and genesis of at first is a Natural Right (the inchoate right that can only belong to a human person) has interplay with innovation that in a blindfold test would otherwise be deserving of patent protection, but taking the blindfold off, as one must, raises the very real notion that NO patent protection might inure.

    I would also posit that lessons from the political sphere SHOULD be making evident the dangers of elevating the power of juristic persons. I cannot advocate for increasing something that should be under scrutiny for decreasing.

  7. Anon February 12, 2021 10:16 am

    Mr. Potter,

    Searching (by machine) should not be confused with the legal fictional persona of Person Having Ordinary Skill In The Art.

  8. Pro Say February 12, 2021 10:32 am

    Chuckles. Without human thought and involvement (and with apologies to Robby the Robot and all his buddies), patentable invention is and will always be impossible.

    Impossible.

    “I ordered the computer to invent! invent! . . . to create a patent! create a patent! . . . but nothing happened!”

    Non-human technologies — while becoming materially useful / helpful in the years to come — will never be able to independently create from scratch a complete patent disclosure including a claim set out of thin air.

    Never.

    Accordingly, there will always be one or more humans who must be (and presumably will want to be) designated as the inventor/s.

    Always.

  9. Curious February 12, 2021 11:31 am

    One of the few times when MaxDrei makes sense. A machine cannot own property. A machine cannot, therefore, assign the property to anybody. A machine cannot sue to enforce a patent, even if a patent was granted to the machine. What is the use of patent granted to a machine then?

    AI is a tool that can be used by humans to identify certain previously-unknown relationships. If a human identifies a particular problem to be solved (e.g., by providing the initial criteria) with which the AI operates to identify solutions, the human is still the inventor.

    Having the AI, as an inventor, unnecessarily complicates things and introduces further sticky issues that would need to be addressed.

    This is an intellectual exercise that has no real world value or solves any real world problem.

  10. Nec Verum February 12, 2021 11:56 am

    @Pro partially agree, but on the claims side, most of the inventors don’t know how to do a claim.

    – Let’s give the machine the inventorship, ok, them let’s sue Dr. Stephen Thaler and his legal team for theft, even if DABUS signed a contract , its a Voidable Contract as DABUS is a minor. How DABUS got paid ? in bitcoins ? or just more ram memory ?
    Modern slavery !!

    This guy is a marketing genius.

  11. MaxDrei February 12, 2021 12:35 pm

    Readers, you might like to know that, in Europe, the UK’s Chartered Institute of Patent Attorneys has already written and posted its response to an invitation from the UK Patent Office to comment. Some statements in it might surprise you.

    Here a Link:

    https://www.cipa.org.uk/policy-and-news/consultation-responses/response-to-uk-ipo-ai-and-ip-consultation/

    Look for the link embedded in it, to take you to the actual Paper, as pdf doc.

    As to ownership rights, we should be careful to distinguish at least three different rights, namely: ownership of the invention, ownership of the patent application and ownership of the right of priority set up in the 19th century by the Paris Convention.

  12. Anon February 12, 2021 12:48 pm

    Pro Say,

    I would love to see you and George square off.

    Can I get DABUS to officiate?

  13. Anon February 12, 2021 12:59 pm

    Curious,

    Your second paragraph is legally incorrect.

    I believe that we have gone over this previously.

    I have even spelled out a detailed scenario of a man opening a box in a room (and analogized to that ‘opening’ being world wide on the Internet). Mere recognition does not make one a devisor. You are not using the facts at hand in your position, and appear instead to be retreating to a ‘mere machine use’ position which is NOT the position at point with AI.

  14. Paul Morinville February 12, 2021 1:17 pm

    My prior point is tongue and cheek, but it was intended to bring out a point. If AI can invent, it must be a person. And therefore its rights as a person are being decided in this case, so I think that makes AI a party in this case. As a party, it should be offered the opportunity to write its own brief making its case. If AI has the intellect to invent, it must also have the intellect to write a brief.

  15. Curious February 12, 2021 1:53 pm

    Your second paragraph is legally incorrect.
    It was mostly factual assertions. The only (potential) legal conclusion was “the human is still the inventor.”

    I believe that we have gone over this previously.
    Not with me you have. I’ve never addressed this issue before (in any forum).

    I have even spelled out a detailed scenario of a man opening a box in a room (and analogized to that ‘opening’ being world wide on the Internet). Mere recognition does not make one a devisor. You are not using the facts at hand in your position, and appear instead to be retreating to a ‘mere machine use’ position which is NOT the position at point with AI.
    Analogies should be easily understandable and relatable. This is not.

    Forget whether AI can be an inventor or not (i.e., the intellectual exercise at hand), tell me what is the practical result of the AI being named an inventor? Can the patent be assigned? Can the patent be enforced?

    If the answer to both of these questions are “no,” then what is the point of making declaring that an AI can be an inventor?

  16. Anon February 12, 2021 2:08 pm

    Thanks MaxDrei for the link. I am just starting into it and I already see that they are espousing the view that I had previously put to you in the critical part of the answer to question 2c.

    I will have to circle back after digesting the full piece.

  17. Anon February 13, 2021 7:52 pm

    Alright MaxDrei, I have now digested the material at the excellent link that you provided.

    Is there any point in particular that you would like to discuss?

    Paul @14,
    I see the point that you want to make, but my reply pushes back with the point that full sentience is NOT at point here. What is at point is merely enough to remove the human as being the entirety of the devisor**. Your assertion of “must have” is not so. That’s the point of my push-back on your comment.

    ** Yes, I am using this term with specific intent.

    Curious @15,
    My apologies. I went back to some of the older threads on this topic, and see that it is a different regular that has posted views to which I have provided counter points. That being said, I would also advise you to revisit some of the older threads (here is a good starting point: https://www.ipwatchdog.com/2020/05/04/uspto-shoots-dabus-bid-inventorship/id=121284/ )

    And a bit earlier (but with some good development: https://www.ipwatchdog.com/2020/01/07/epo-ukipo-refuse-ai-invented-patent-applications/id=117648/

  18. Anon February 13, 2021 7:56 pm

    Apologies for a separate post, but too many links in one may trigger a block.

    Another good exchange: https://www.ipwatchdog.com/2020/05/21/dear-uspto-patents-inventions-ai-must-allowed/id=121784/

    In a bit of parallel, another link: https://www.ipwatchdog.com/2020/01/28/epo-provides-reasoning-rejecting-patent-applications-citing-ai-inventor/id=118280/

    mirrors the January/May timeframes of the two links in the prior post.

  19. ipguy February 13, 2021 8:56 pm

    So what is the level of ordinary skill in the art when the inventor is an AI? Is the level of ordinary skill still defined in terms of the ordinary skill of a homo sapien or the equivalent thereof?
    Of course, if you pass a law saying an AI is a legal entity, then there goes the problem with the issue of invention by a “person.”

  20. Anon February 14, 2021 9:50 am

    Editors,

    Please check the buffer for posts with multiple hyperlinks.

    Thanks

  21. PAUL V MORINVILLE February 14, 2021 1:22 pm

    Anon, “What is at point
    is merely enough to remove the human as being the entirety of the
    devisor**.”

    If AI is one of a multitude of inventors, your assumption is that it thinks. If it thinks, it should be able to write its own brief.

    If it doesn’t think, its contribution to the invention is the result of math/calculation, .not thought.

    Maybe Descartes can help us figure this out.

  22. Anon February 14, 2021 3:00 pm

    ipguy @ 19,

    Not so fast. The mere “AI is a legal entity” does NOT resolve the issue (leastwise in the US).

    I have explained this several times now.

    (thank you editors for clearing the buffer)

  23. B February 14, 2021 4:56 pm

    @ Paul “As a party, it should be offered the opportunity to write its own brief making its case. If AI has the intellect to invent, it must also have the intellect to write a brief.”

    Given that most inventors can’t and don’t write legal briefs, I assume that a lawyer is permissible to represent an AI before the CAFC?

  24. Paul Morinville February 14, 2021 7:33 pm

    B. It is possible for an inventor to write a brief and some do; more now than in the past due to the crash of the patent system and the exit of contingent fee attorneys.

    However, it is not possible to AI to write a brief. That takes thinking not statistics or other calculations.

    If one can think, one exists. Ask Descartes.

  25. Curious February 15, 2021 10:01 am

    I would also advise you to revisit some of the older threads (here is a good starting point:
    I looked at the first link. There was a lot written, and while I read some of it, I wasn’t going to take the time to read all of it. Regardless, I’m looking to answer some fairly simple questions, which I’ll repeat here:
    Forget whether AI can be an inventor or not (i.e., the intellectual exercise at hand), tell me what is the practical result of the AI being named an inventor? Can the patent be assigned? Can the patent be enforced?

    If the answer to both of these questions are “no,” then what is the point of … declaring that an AI can be an inventor?

  26. Paul Morinville February 15, 2021 10:18 am

    Curious has a good point. How can AI assign its rights? Can it even recognize that it has rights?

    People think AI is some sort of conscience thinking machine. But what it does is really only statistical analysis – math. It is a very fancy calculator. Incorporating intelligence in its name attributes value that it does not possess.

  27. Curious February 15, 2021 11:11 am

    Given that most inventors can’t and don’t write legal briefs, I assume that a lawyer is permissible to represent an AI before the CAFC?
    Who is going to give permission to file the patent application? Who is going to give permission to sue on the patent? Who is going to agree to the legal representation?

    There are procedures in place for uncooperative inventors or deceased (who have already assigned their legal rights). Who is the legal representative of an AI?

  28. Anon February 15, 2021 1:18 pm

    Curious,

    To your “simple questions” (without you wanting to take the time to understand the issues), I can only say that mileage on any answers will vary greatly.

    You seem to be stressing the point (and making an assumption) that a patent MUST be granted.

    The “simple” answer simply is not that simple, and instead would have you understand the foundations of patent law, including the Lockeian view of natural rights, the reason why government may even make a legal property out of a (real) person’s inchoate right, and why past attempts (including the slave era) would not allow patents to those who truly had no such original claim (to be turned into a full legal claim of property through patent law).

    You simply may have skipped into the weeds with your desire for a “simple” answer, and without more, may not even be able to understand why you are in the weeds.

  29. Curious February 15, 2021 4:00 pm

    You simply may have skipped into the weeds with your desire for a “simple” answer, and without more, may not even be able to understand why you are in the weeds.
    You could have simply stated “I don’t have an answer.

    You seem to be stressing the point (and making an assumption) that a patent MUST be granted.
    If a patent cannot be granted, what is the point of this exercise?

    Regardless, let’s start with baby steps. Who is going to sign the declaration under 37 CFR 1.63? This is from subsection (d) of 1.63:
    A person may not execute an oath or declaration for an application unless that person has reviewed and understands the contents of the application, including the claims, and is aware of the duty to disclose to the Office all information known to the person to be material to patentability as defined in § 1.56. There is no minimum age for a person to be qualified to execute an oath or declaration, but the person must be competent to execute, i.e., understand, the document that the person is executing.
    Is an AI “competent to execute” the document and meet these other requirements?

    Regardless, I’m not the one wading into the weeds, you are. My questions are directed to how much ‘personhood’ are we going to attribute to an AI. Until and unless that issue is addressed, whether or not an AI can be an inventor is moot. The issues I’m exploring with my questions have far more ranging consequences than the issue of whether or not an AI can be an inventor. Until those issues are addressed, whether an AI can be an inventor is an issue that can be put on the backburner.

  30. Anon February 15, 2021 5:02 pm

    You could have simply stated “I don’t have an answer.”

    When you miss, you miss big. Not only do I have an answer (more detailed than what you are willing to put time in to bother understanding, I also gave you the broad strokes for you to understand the context of your own question.

    What you think are “weeds” that I am wading into is the pavement of the road that the issue stands upon.

    Do you even recognize the Lockeian nature of the law at hand?

  31. Curious February 15, 2021 7:52 pm

    Do you even recognize the Lockeian nature of the law at hand?
    Again, you could have simply stated “I don’t have an answer.” I have little patience for your rhetorical flourishes. If you have an answer, then provide it.

    Not necessarily addressing you, but merely pointing out something that came to mind after re-reading this article, which is that I suspect that Dr. Thaler is less interested in the specific issue at hand (i.e., “Should We Require Human Inventorship”) but more interested in addressing the issues that I raised in a backdoor manner. More specifically, my suspicion is that Dr. Thaler wants some court decision that permits AI to be an inventor to bolster some subsequently-presented argument that AI also needs to be permitted some form of personhood.

    What I found interesting (in my second reading of the article) was this:
    It would be far easier to contend that Dr Thaler was entitled to the grant of a patent pursuant to section 7(2)(a) of the Patents Act 1977, on the ground that he (Dr Thaler) owned the machine that did the inventing. That would actually be a much closer analogy to the general proposition advanced by Dr Thaler that “if you own the machine, you own the output of that machine”. However, as I have noted, this was not a contention advanced by Dr Thaler: indeed, it was positively not advanced.
    If Dr. Thaler was truly concerned about ownership of the technology (and seriously, who else would the AI assign the rights to but Dr. Thaler?), he would have made the arguments discussed above. However, these arguments were “positively not advanced.” As such, I see this as an attempt by Dr. Thaler to get some court decision that imbues AI with some type of personhood.

    As someone who deals with AI in some of the patent applications I handle, I’m fairly confident in saying that AI has a LONG WAYS to go before arising to some level deserving of personhood. It is an extremely sophisticated tool. While the inner workings of which can be a mystery to the vast majority of us (even perhaps all of us), it is still a tool — not an inventor. The person using the tool is the inventor (“Patentability shall not be negated by the manner in which the invention was made”). Full stop.

  32. Anon February 15, 2021 9:09 pm

    If you have an answer, then provide it.

    Asked and answered.

    You are going to have to understand that what you dismiss as “flourish” is so very much more than that.

    I have also already addressed your “mere use” (which is why I first mistook your position here as that of another).

  33. Curious February 15, 2021 11:20 pm

    Asked and answered.
    LOL … you sound like an examiner.

    Me: Where is limitation X?
    Examiner: It is in paragraphs [0033]-[0056]
    Me: I know that is what you cited, but where in paragraphs [0033]-[0056]?
    Examiner: I just told you
    Me: Paragraphs [0033]-[0056] span 2 pages of text and discusses dozens and dozens of different elements. I can see several potential candidates, but none match all of the claimed elements. Can you be more specific?
    Examiner: It is in paragraphs [0033]-[0056]

    that what you dismiss as “flourish” is so very much more than that
    You mean like self-referential unclarity stacked on top of obfuscation? I understand that is your writing style and Lord knows I’ve probably read just as much as your stuff as anybody on the internet. However, I understand why certain people become extremely frustrated with your writings. You rarely get to the point.

  34. B February 16, 2021 12:31 am

    The CAFC has committed itself to saying practically all software is abstract.

    So the issue arises: can an abstract thing give rise to an inventive concept.

  35. B February 16, 2021 12:33 am

    @ curious “Who is going to give permission to file the patent application? Who is going to give permission to sue on the patent? Who is going to agree to the legal representation?”

    Those are macht-nichts

    The better question: who is going to sign the declaration/oath?

  36. Anon February 16, 2021 7:24 am

    Curious,

    Please stop projecting. It is you that refuses to read the paragraphs of your own example.

    You wanted an “easy” answer, and I gave you one. I also gave you the details, but YOU stated that you did not want to bother with the details.

    The point (both the simple summary and the details) are not as you suggest, hidden by layers of “obfuscation.”

    If you don’t understand what it means to consider the Lockeian view of natural rights and the basis of the inchoate right that becomes a full legal right through the patent process, why don’t YOU simply say so?

    It is not as you claim that I do not “get to the point” that is the problem when you seem incapable of understanding the point.

  37. Anon February 16, 2021 9:26 am

    B@ 34,

    How is any concept (as a concept) anything but “abstract?”

  38. Curious February 16, 2021 9:28 am

    You wanted an “easy” answer, and I gave you one. I also gave you the details, but YOU stated that you did not want to bother with the details.
    You didn’t give me any answer. You simply provided a couple of links that pointed to some of your past conversations and asked me to figure it out from there.

    If you don’t understand what it means to consider the Lockeian view of natural rights and the basis of the inchoate right that becomes a full legal right through the patent process, why don’t YOU simply say so?
    Thank you for providing an excellent example of your obfuscation. BTW — asking me to consider something (e.g., “the Lockeian view of natural rights”) is not providing an answer.

    Looking at your most recent posts (@33, @29, @27, @25) you don’t address a single point of mine.

    It is not as you claim that I do not “get to the point”
    Dude — you RARELY ever get to the point. I’ve been reading your stuff for well over a decade. On many occasion, I’ve been forced to do a google search in attempt to figure out the point you are attempting to make. Between your fired hosed apes, Gordian knots with Kavanaugh scissors, attorney oaths, and sovereigns (among a great many others), people must wonder what the heck you are writing about.

    It took me a couple of minutes, but found a quote from David Boundy dated December 13, 2018, that I’ve kept in the back of my head:
    Anon @49 @41 and @35 —

    I haven’t responded to you because I have told you that I don’t engage with you. You don’t think clearly and don’t write clearly, and there’s no point.

    followed thereafter by:
    Anon, you don’t read carefully, you don’t engage meaningfully with what others have said, and you don’t test what you’re about to say against a common-sense understanding of the real world before you hit “Submit.” This is why I don’t engage with you.

    After that, I really don’t have anything else to add.

  39. B February 16, 2021 10:07 am

    @ anon “How is any concept (as a concept) anything but “abstract?”

    Of course, but how does working software (which the CAFC considers “abstract”) give rise to the non-abstract

  40. B February 16, 2021 10:21 am

    @ Paul “However, it is not possible to AI to write a brief. That takes thinking not statistics or other calculations.”

    I am the first to admit that today’s AIs are not up to writing a brief, but if you ever read some of the briefs coming out of the Solicitor’s office of the USPTO, you might change your mind that writing a brief takes thinking.

  41. Anon February 16, 2021 1:03 pm

    Curious,

    Maybe you need to do more than grab the quote from Mr. Boundy who was excessively rump-sore from my proving him dead wrong on the fact that Void for Vagueness was not a legal concept limited to criminal law.

    Just as here, your protest that “Lockeian nature” is not an answer is simply false.

    Again, if YOU don’t understand why Lockeian nature is directly on point, then why don’t YOU just say so?

  42. Anon February 16, 2021 3:12 pm

    B @ 39,

    I am pretty sure that you and I both know that the view that any software is not (factually) ‘abstract’ by any definition of the word.

    If that were so, then software itself would not be a ‘thing.’

    Software is a thing precisely because it is real.

    I realize that I am preaching to the choir (especially given your link on another thread), but software is nothing more than a choice of wares in the computing arts.

    It is only when you introduce inte11ectual DIShonesty into the deliberations, that you ‘all of a sudden’ are faces with the contradictions that somehow software is ‘abstract.’

  43. B February 16, 2021 4:44 pm

    @ anon “I am pretty sure that you and I both know that the view that any software is not (factually) ‘abstract’ by any definition of the word.”

    You, I, and a few hundred million other people in the world.

    Unfortunately, the CAFC is tech-illiterate.

  44. Curious February 16, 2021 5:47 pm

    Again, if YOU don’t understand why Lockeian nature is directly on point, then why don’t YOU just say so?
    Continue to obfuscate away … it is what you are good at.

    Perhaps you’ll be so kind as to explain how “Lockeian nature” is going to answer the previously-posed question of: “Who is going to sign the declaration under 37 CFR 1.63?”

    BTW — I’m not holding my breathe for an answer.

  45. Anon February 16, 2021 7:19 pm

    No obfuscation. Are you ready to simply admit that you do not understand the larger premise here?

  46. Anon February 17, 2021 7:36 am

    As to your (lower level) question of “Who is going to sign the declaration under 37 CFR 1.63?” the answer is immaterial to the premise under investigation here as to whether or not AI can be the devisor**.

    Do you understand why your question is simply NOT AT POINT?

    You accuse me of obfuscating while insisting on inserting questions that go on tangents.

    Maybe you should do less accusing, more reading of what has already been provided, and try to stick to the main points (in either a simpler form, or in the form that deals with more of the details and nuance).

  47. Curious February 17, 2021 11:47 am

    Are you ready to simply admit that you do not understand the larger premise here?
    Don’t confuse my lack of caring with lack of understanding.
    Whatever your “larger premise” regarding the topic at hand (i.e., “Should We Require Human Inventorship?” happens to be, it is of little interest to me at the moment. There are certain threshold issues that need to be addressed and my questions were all directed to those threshold questions. To quote David Boundy “you don’t engage meaningfully with what others have said,” which is precisely describes your interactions with me.

    I asked a bunch of questions, and you respond by stating “Asked and answered.” You answered NOTHING. Merely directed me to several past conversations of yours is not an answer.

    Maybe you should do less accusing, more reading of what has already been provided, and try to stick to the main points (in either a simpler form, or in the form that deals with more of the details and nuance).

    Maybe you should stop avoiding the issues and just answer these some simple questions. These were the first questions I posed to you after you first responded to me:

    Forget whether AI can be an inventor or not (i.e., the intellectual exercise at hand), tell me what is the practical result of the AI being named an inventor. Can the patent be assigned? Can the patent be enforced?

    If the answer to both of these questions are “no,” then what is the point of making declaring that an AI can be an inventor?

    I’ve also added the question of: Can a machine execute a declaration under 37 CFR 1.63?

    Do you understand why your question is simply NOT AT POINT?
    Classic Anon argument. Don’t address the point. Instead, ask a rhetorical question (while issuing an insult), and then don’t proceed to answer your own question. It is ONE … BIG … FAT … NON-ANSWER. You do this ALL THE TIME — not just to me, but to nearly everyone. There was potential for some great debate/discussion here, but you consistently bring little to the table.

    You accuse me
    You are the biggest accuser, by far, on both IPWatchdog and Patently-O. You berate posters — ALL THE TIME. So please, get off your high horse.

  48. Anon February 17, 2021 2:41 pm

    Don’t confuse my lack of caring with lack of understanding.

    I am not. I am basing this on both your lack of caring AND the ‘answers’ that you are giving.

    If you want me to come to a different conclusion, I suggest that you either a) care enough to show that you understand, or b) provide better answers, of c) both.

    Whatever your “larger premise” regarding the topic at hand (i.e., “Should We Require Human Inventorship?” happens to be, it is of little interest to me at the moment

    You have already established that you do not care about the actual topic here.

    Maybe you should realize just how that affects the rest of your discourse.

    Requoting a bitter person who just had his arse handed to him is NOT the way to make up for either of your own lack of caring or lack of good answers. That’s twice this tactic fails you.

    Your “bunch of questions” are the very thing that you accused me of: obfuscations. Maybe if you actually did care enough (and spent some minimal amount of time thinking about things already provided to you), then you would see just how in the weeds you are here. It simply is not going to get better for you. Worse, for the amount of time that you have spent trying to validate you own lack of care and effort, you could have informed yourself with the helpful links that I provided.

    Classic Anon argument. Don’t address the point. Instead, ask a rhetorical question

    LOL – except not, given that I am ON point and it is you that is NOT on point. If you want to “address the point,” then you should care enough to try to do so – especially if you are going to turn around and whine when someone (rightly) dismisses you for being in the weeds (after trying to help you become informed). I know, I know, there is that whole (and hole, that you have dug for yourself) thing about you not caring enough.

    And yet again, let’s compare what each of us have actually brought to the table. You have brought your lack of care, lack of effort, and oversized ego. I have brought links to more detailed and nuanced discussion, a shorted and more accessible concept, and — let’s face it — a far better position to which to “berate posters.”

    If you want me off that high horse, then you are going to have to DO a lot more (and care even just a little). Elsewise, you are more than welcome to suffer under what I have commonly attributed to John Maynard Keynes: Words ought to be a little wild for they are the assault of thoughts on the unthinking.

    And, by the way, you missed the point of the “accuse me,” line, for it is NOT that one is merely accused, but rather, it is that you engage in duplicity by doing the thing that you accuse me of. Hey, I have no problem at all with you saying that I berate posters. That is a plain accusation. I am fine with it as I DO berate posters. But I do NOT engage in the duplicity of berating others for actions that I do and then turn a blind eye to.

    Up your game, Curious. You are (normally) much, much better than you are here.

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