Posts Tagged: "AI"

Editor’s Note: Dean A. Pelletier of Pelletier Law, LLC co-authored this article with Erik Weibust.

Legal, technology, business, and academic professionals currently are debating whether an invention autonomously generated by artificial intelligence (AI) should be patentable in the United States and elsewhere. Some proponents of patentability argue that if AI, by itself, is not recognized as an inventor, then AI owners will lack protection for AI-generated inventions and AI innovation, commercialization, and investment (collectively, AI innovation) will be inhibited as a result. Some of those proponents further argue that, without patent protection as an option, AI owners increasingly will opt for trade secret protection, which by design reduces public disclosure of corresponding inventions and, as such, still will inhibit AI innovation. Some opponents of patentability, on the other hand, argue that patenting AI-generated inventions will promote those inventions and discourage human-generated inventions, thereby reducing human innovation and ultimately competition, because patent ownership will become concentrated, or more concentrated, in fewer entities—in particular, large, well-funded entities.

On June 2, Dr. Stephen Thaler filed a complaint in the U.S. District Court in Washington, D.C. naming as defendants both the United States Copyright Office (USCO) and Shira Perlmutter, in her official capacity as Register of Copyrights and Director of the USCO. The complaint marks the start of a new phase of Thaler’s attempts at obtaining a copyright registration for “A Recent Entrance to Paradise,” an AI-generated work that is the output of Thaler’s AI system known as Creativity Machine. Thaler is requesting the district court issue an order that would require the USCO to set aside the Review Board’s decision and reinstate the application for registration of the work. Thaler is also seeking an award of reasonable attorneys’ fees and costs. The case is Stephen Thaler v. Shira Perlmutter and The United States Copyright Office (1:22-cv-01564) (June 2, 2022).

Generally, artificial intelligence (AI) is an automation of a thing that a human being can do, or the simulation of intelligent human behavior by a machine. In other words, AI performs what a human can but with vastly more data and processing of incoming information. Unfortunately, claiming AI in adherence to its typical definition is akin to asking for a Section 101 subject matter eligibility rejection in the United States. Europe and China have already updated their patent examination procedures for AI. If the United States sustains its current examination procedure of machine intelligence in accordance with the abstract idea doctrine under the Alice and Mayo framework established by the Supreme Court, will we be leaving this industry behind?

High-stakes artificial intelligence (AI) is becoming even higher risk in the European Union, where AI regulation efforts are underway that could cost your company up to 6% of its total worldwide revenues—more than the potential penalties for privacy violations under the EU’s General Data Protection Regulation (GDPR). On April 21, 2021, the European Commission proposed rules for regulating AI (the “AI Act” or “Act”), to which the European Parliament recently released proposed amendments on April 20, 2022. The Act may undergo a series of additional amendments, but a final text is nearing completion and European countries are starting to act in anticipation of the regulation. Companies should plan for the comprehensive act to become law and begin implementing best practices now to ensure a competitive advantage. Below is an overview of the AI Act’s key provisions that takes into account the Parliament’s recent changes.

On April 13, 2022, the Federal Court of Australia, on appeal, reversed its 2021 decision that DABUS, an artificial intelligence (AI) machine, qualified as an inventor for a patent application under Australian law. DABUS is a computer built, programmed and owned by Dr. Stephen Thaler. Thaler has filed patent applications in several countries around the world for inventions created by DABUS. Each application names DABUS as the sole inventor. Patent offices in the United States, the United Kingdom, and Australia determined that the applications were incomplete, since a human inventor was not identified. Thaler appealed each application in the patent offices, all of which continued to rule that an AI machine was not an inventor. On further appeals, courts in the United States and the United Kingdom have agreed with the patent offices and ruled against Thaler. However, in 2021, the Federal Court of Australia issued an opinion by a primary judge, who reversed the Australian Patent Office and held that Australia’s law did not require an inventor to be a natural person.

Preventing others from copying your robot’s AI-driven face, expressions and vocalizations requires a comprehensive intellectual property strategy. That’s one of the takeaways from a pending dispute between robot makers as described in Digital Dream Labs, LLC v. Living Technology (Shenzhen) Co. (pending in the Western District of Pennsylvania). The case involves plaintiff DDL, which owns registered copyrights in desktop humanoid-vehicle hybrid robots called COZMO and VECTOR (see below left and middle), and defendant Living.AI, whose headphone-wearing, skateboard riding, humanoid robot called EMO (below right) is alleged by DDL to infringe its copyrights. Both companies reportedly deployed AI software on their robots that selects graphical animations and sounds to output based on the robot’s reactions with its environment and user.

The European Intellectual Property Office (EUIPO) recently published a deep dive report, titled Study on the Impact of Artificial Intelligence on the Infringement and Enforcement of Copyright and Designs. The report is a product of the Impact of Technology Expert Group, which was established in early 2019. They followed an approach based on Lawrence Lessig’s ‘Code and Other Laws of Cyberspace’ also known as the Code Theory. This describes how human online activity is regulated by law, social norms, and the market, taking into consideration the internet’s technical infrastructure. This approach led to a double-edged sword metaphor, in which a particular technology can be used either to infringe IP rights or to protect/enforce them, presenting to some extent the same features in each case.

After a patent application is filed with the USPTO, it gets assigned to an art unit and a patent examiner in that art unit who is responsible for reviewing the application, doing a prior art search, and determining whether to grant a patent…. In the past, this process was manual. People would review patent applications to assign classification codes, and then other people would determine the art unit and examiner to be assigned using the classification codes. More recently, the USPTO is automating the assignment process. The assignment process is a great candidate for automation using machine learning, because large amounts of training data are available to train a machine learning model. Automating the assignment process has several advantages: lower costs, faster processing, and more consistent and likely better assignments of applications to art units and examiners.

In an opinion letter dated February 14, 2022, the Review Board of the United States Copyright Office (Review Board) affirmed a decision of the U.S. Copyright Office (USCO) denying registration of a two-dimensional artwork generated by Creativity Machine, an artificial intelligence (AI) algorithm created by Dr. Stephen Thaler. Established by regulation in 1995, the Review Board is responsible for hearing final administrative appeals following two opportunities for a claimant to appeal copyright registration refusals. Thaler filed an application to register the computer-generated work, “A Recent Entrance to Paradise,” on November 3, 2018. On the application, Thaler listed Creativity Machine as the author of the work and indicated himself to be the claimant, with a transfer statement explaining he acquired ownership of the work because of his “ownership of the machine.”

If you follow Reese Witherspoon on Twitter, you may notice she has been tweeting about non-fungible tokens, or NFTs, a lot. She currently features an NFT as her Twitter profile picture (abbreviated “pfp” for those in the know). In October 2021, Witherspoon became a partner in an NFT art collection called World of Women, or WoW, which was created and illustrated by the artist Yam Karkai. Through an auction-style bidding process, the WoW collection is currently available on OpenSea, one of the largest NFT marketplaces. As of publication, an individual WoW NFT auction starts at around 7 Ethereum (ETH), the cryptocurrency used to purchase on OpenSea, which currently equates to approximately USD 20,000.

With the forecasted growth of global Artificial Intelligence (AI) market size, it is evident that AI is quickly becoming the solution to most software and service needs. AI has even infiltrated our homes—for example, we are increasingly seeing smart home systems that incorporate Internet of Things (IoT) technology along with a master AI virtual assistant. Undoubtedly, the technology has made space in the intellectual property-based service sector as well. For instance, to support patent searching, there are quite a few AI-based automated patent search tools available. Although many of these are still in their training stage, these tools are likely to mature. Thereafter, the question looming over innovators is whether to take advantage of affordable AI patent search tools or invest in outsourced manual patentability searches.

The England and Wales Court of Appeal has upheld lower rulings that two patent applications designating an artificial intelligence called DABUS as the inventor were deemed to be withdrawn. (Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374.) However, the three judges were split, with the two patent specialists on the panel taking different views. Dr. Stephen Thaler filed two UK patent applications in October and November 2018 for a “Food Container” and “Devices And Methods For Attracting Enhanced Attention” respectively. Parallel applications have been filed in many other jurisdictions, as reported previously by IPWatchdog.

On September 2, the U.S. District Court for the Eastern District of Virginia issued a decision granting a Motion for Summary Judgment for the United States Patent and Trademark Office (USPTO) and upholding the Office’s view that AI algorithms cannot be listed as inventors on U.S. patents. The court pointed to the Administrative Procedures Act’s (APA’s) strong deference to final agency decisions, barring any egregious errors. DABUS generated outputs corresponding to (1) a fractal design for food container surfaces that may help prevent stacked containers from sticking together and (2) a technique for controlling the timing of flashing warning lights to help attract attention. Dr. Stephen Thaler (DABUS’s creator and owner) filed patent applications on these inventions that were filed around the world, listing Thaler as the applicant and listing only DABUS as the inventor.

Artificial Intelligence (AI) is the latest buzzword across all sectors. Every tech and non-tech company is vigorously filing, strategizing or planning to enter the AI patent domain. However, the journey is not as easy as it may seem. While drafting AI-based patent applications, drafters often face challenges in formulating the right strategy for writing claims and identifying the correct scope of the application. Thus, it’s important to know the challenges in detail and to develop practical solutions for drafting a patent-worthy application.

With South Africa’s patent office having recently granted the first patent to an AI inventor, and an Australian court ruling in favor of AI inventorship, it’s time to review how we got here—and where we’re going. The number of artificial intelligence (AI) patent applications received annually by the United States Patent and Trademark Office (USPTO) grew from 30,000 in 2002 to more than 60,000 in 2018. Further, the USPTO has issued thousands of inventions that utilize AI. According to a 2020 study titled “AI Trends Based on the Patents Granted by the USPTO”, the total number of AI-related patents granted by the USPTO per year increased from 4,598 in 2008 to 20,639 in 2018. If AI-related patent applications and grants are on the uptick, what was the problem with DABUS?