One man’s fight for patent rights for AI developers Booths • The Register

analysis Stephen Thaler, founder of the software company Imagination Engines, has fought for years to have machines legally recognized as inventors worldwide. Now it looks like his fight was in vain.

The struggle began when he tried to file patent applications on behalf of someone — or rather, something — with an odd name for the original inventor. First name: “DABUS”, last name: “Invention generated by artificial intelligence.”

Thaler claims his AI system DABUSwhich stands for “Device for the Autonomous Bootstrapping of Unified Sentience” invented a distress beacon-like device that flashes with unique patterns, and a food container shaped using fractal geometry. After US, UK and other government officials rejected his patent applications on behalf of DABUS for these objects, naming DABUS as the inventor, he began to sue.

So far, South Africa is the only nation that accepts DABUS as an inventor.

With the help of a legal team led by Ryan Abbott, Professor of Law and Health Sciences at the University of Surrey in England, Thaler has filed complaints against the US Patent and Trademark Office (USPTO), the UK’s intellectual property office, the European Patent Office, the German Patent and Trademark Office and Australia’s Commissioner of Patents to secure the issuance of patents for its AI system.

His first line of attack was to obtain IP rights for DABUS in hopes of setting a precedent. After a US district court in Virginia sided USPTO decision to reject his patent application on the grounds that only “natural persons” or people can be inventors, Thaler took it to the Court of Appeal and lost there too.

Now the only way to continue fighting the rules in the States is for America’s highest judicial body, the Supreme Court, to hear his case. Which is unlikely.

“We plan to appeal,” Abbott said The registry. “Although the Supreme Court only takes a very small percentage of the cases that come in.”

The Court of Appeals’ ruling last month focused on key legal terminology in US patent law. “In this case, the question arises as to who or what can be an inventor. In particular, we are being asked to decide whether an artificial intelligence (AI) software system can be named as an inventor in a patent application,” the court documents said [PDF].

“At first glance, solving this problem might appear to involve an abstract examination of the nature of the invention or the rights, if any, of AI systems. In fact, however, we do not have to deal with these metaphysical matters. The task begins – and ends – with regard to the applicable definition in the relevant law,” the ruling continued.

In other words, there is no need to debate the rights of computers. America’s most important patent law, the Patent Act, is clear: Individuals only. Thaler’s case might well have trouble getting anywhere at this rate.


The Leahy-Smith America Invents Act [PDF]which was signed in 2011 to update the US patent rules also clarifies this: “The term ‘inventor’ means the individual or, in the case of a collective invention, the persons collectively who invented or discovered the subject matter of the invention”.

The legal definition of an individual means a “human being” or a “person,” the appellate judges said. “For example the [Patent] Act uses personal pronouns – “himself” and “herself” – to refer to a “person”. It also doesn’t “use itself,” which it would have done if Congress had intended to allow non-human inventors,” they added.

However, Abbott pointed out that there are times when nonhumans have been recognized as individuals: for example, he said, corporations. And so we’re told, if companies can be thought of as individuals, chances are software can too.

“We disagreed with the Federal Court’s ruling because, among other reasons, previous Supreme Court cases had held that individuals could be artificial persons like corporations, and the opinion leads to an unowned and unpatentable invention, which is not what the patent is action was meant to be,” he told us.

Patent law is useful because US business can benefit from publicly granted patents. Therefore, Abbott argued that the patent system should accept machine-made inventions.

Thaler firmly believes that granting machine rights will encourage innovation and the generation of ideas, and that impeding that advance means failing to meet the obligations of patent law, which he believes may be unconstitutional. The Court of Appeals dismissed those claims, saying it had to look only to the letter of the statute, if not the spirit, to reach its verdict.

“When a law clearly and directly answers the question before us, our analysis does not go beyond the plain text. Here, Congress has established that only a natural person can be an inventor, so no AI. Accordingly, the decision of the district court is upheld,” it said.

Thaler tells The registry Preventing machines from being inventors means that intellectual property generated by software is not published, locking in the benefits of technological advances. “[Imagine] You’ve just invested a small fortune in an inventive AI system, and it’s inventing a cure for cancer. Do you keep it a trade secret or risk losing it to the public due to a failed patent application that lacks a named human inventor?” he said hypothetically.

He also believes that if computers can be credited as inventors, people will be able to steal their ideas and patent those ideas in their own names, which will discourage the use of machine learning to develop patentable technologies.

But getting marginalized, Thaler also insisted that DABUS was conscious and sentient, and had the potential to invent technologies that could solve “a range of economic, environmental, and sociological challenges.”

Before you gossip…

Firing Thaler may be easy, though his efforts to challenge the law and get his way are rooted in the possibility that artificial general intelligence could be developed in our lifetime, something even experts are taking seriously.

At some point in the future, machine capabilities could overtake humans in many common tasks and have a major impact on the way we live and work. In some cases, the future is not that difficult to imagine. AI-generated art, for example, is already alarming some artists, illustrators, and photographers who believe computers could take their jobs away.

Some even go so far as to believe that one of the greatest challenges facing humanity is ensuring that AI is used for good, Thaler argued. Recognizing machines as inventors is a step towards ensuring society benefits from their creations, he said.

“Machines can outperform humans in generating intellectual property, creating unprecedented global prosperity. This could point the way to an economy where people strive to improve themselves rather than brutally compete against others for wealth and resources. I believe that would equal something better, but still not a perfect world,” he said.

It’s not clear when or if AI will ever reach the heights Thaler envisions, or if its capabilities will remain in the realm of science fiction forever. So far, the courts have not been swayed by arguments from AI as human beings, but even if the US Supreme Court does not take up Thaler’s case, he will not give up.

Thaler is still working with Abbott for an upcoming hearing before the UK Supreme Court and has pending cases in Germany, Australia and the EU. If that fails, Thaler is still waiting to see whether his patents for DABUS, which are pending in 11 other countries, will be approved. If they don’t, he might file another lawsuit. ® One man’s fight for patent rights for AI developers Booths • The Register

Laura Coffey

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