AI Inventor and the Ethics Trap for US Patent Attorneys

by Dennis Crouch

The Supreme Court denied certiorari in Thaler v. Vidal, a case involving inventor Dr. Stephen Thaler’s attempt to patent an invention created by his artificial intelligence (AI) system, DABUS. Thaler argued that DABUS, not himself or any other human, conceived the invention and identified its significance. However, both the United States Patent and Trademark Office (USPTO) and the Court of Appeals for the Federal Circuit  (CAFC) maintained that US patent laws require a human inventor, and as a result, they refused to consider Thaler’s patent application.

In his petition to the Supreme Court, Thaler asked if the Patent Act restricts the statutory term “inventor” solely to human beings. The current legal stance in the US remains that the answer to this question is “yes,” human inventors and only human inventors.

Moving forward, I am quite concerned for the role of patent attorneys and the upcoming ethical dilemmas — that patent attorneys will be prompted to bury the truth about AI contributions within their patent applications.  In particular, a growing number of inventive entities are developing new products and designs with significant AI input. And, many of the resulting claims will be directed to aspects that were generated by the AI and then first recognized as patentable by either the AI or the patent attorney.  In that situation, the patent attorney will be asked to list the human closest to the invention as the inventor — but, depending upon the circumstances, that listing might turn out to be fraud.

This situation calls for a guidance from the USPTO or the legislature on the definition of “inventor” in the context of AI-generated inventions. The current legal framework does not adequately address this evolving landscape of innovation driven by AI.

I particularly like to think about this situation in the joint inventorship context because the contribution and recognition requirements are much easier to meet than for a solo inventor.  In my experience, generative AI are regularly providing conceptual input that would easily require listing as a joint-inventor, except for the exclusion of non-human inventors.

What do you think here?

= = =

USPTO is holding an AI listening session on April 25 at the USPTO (and webcast). See you there: https://www.uspto.gov/about-us/events/ai-inventorship-listening-session-east-coast

112 thoughts on “AI Inventor and the Ethics Trap for US Patent Attorneys

  1. 21

    BASIC ethics? Whose ethics? In some cultures, facility payments are socially acceptable. In some cultures, facility payments are called bribes.

    let’s stay US focused – I will ask my question again – which model rules? and what is your proof?

    1. 21.1

      Ask your question again – and I will give you the same answer.

      I need no proof.

      I need provide no model rules.

      What culture – recognized in ANY civil society – deems it ethical to claim as one’s won writing, that which the person so claiming knows not to be written by that person?

      Please answer that question, as I demand of you no “proof” or citation to any model rule.

      1. 21.1.2

        I am not copying or plagiarizing – “person so claiming knows not to be written..” Your hypothetical was I opened a box and found an invention. I took that to be a physical form of some object, machine, or compound. From that invention which I discovered, I hired a patent attorney to draft a patent application.

        Now that the invention is drafted in an application, who or what is going to challenge that I am an not an inventor? In your hypothetical, no one knew about the invention in the box before I discovered it. So what basis does anyone have to challenge the inventorship? According to you, you don’t need any proof. Your assertion that inventorship is sufficient, I suppose. I am sure a court of competent jurisdiction would agree.

        Your hypothetical has one major flaw. The premise is no one knows about the invention until the box is opened. However, once the box is opened, your hypothetical assumes that someone (who didn’t open the box) knew the invention was made by another – a fact not stated in the premise.

        Thanks for the conversation. I think we beat this horse to death!

        1. 21.1.2.1

          Stop and recalibrate.

          You have slipped back into the “I won’t get caught” (mere) justification.

          It is an ethical breach for you to take the oath of whatever the patent attorney writes up, since all that you did was give him what was in the box.

          Remember – it may have been another person that placed the item in the box. That person merely opening the box cannot know how what is in the box got into the box.

  2. 20

    European application EP3563896 (“Devices and methods for attracting attention”) is presumably equivalent to one of the US applications at issue in the CAFC decision, Ser. No 16/524,350 (teaching a “neural flame”). It includes references to “spiritual significance”, “cosmic consciousness”, “deity”, “religion” which speak volumes about the credibility of Mr Thaler’s claim that DABUS is the inventor of his applications.

    See paragraphs [0019], [0020], [0021] and [0058] of the description of EP3563896 :

    [0019] Embodiments of the present invention further provide a symbol celebrating the unique tempo by which creative cognition occurs. The algorithmically-driven neural flame may be incorporated within one or more structures that resemble candles or altar fixtures, for instance, to accentuate the light’s spiritual significance. It is noted that that the light source or beacon can incorporate any type of light-emitting device.

    [0020] Such embodiments stem from the notion of one perceiving neural net monitoring another imagining net, the so-called “Creativity Machine Paradigm” (Thaler 2013), which has been proposed as the basis of an “adjunct” religion wherein cosmic consciousness, tantamount to a deity, spontaneously forms as regions of space topologically pinch off from one another to form similar ideating and perceiving pairs, each consisting of mere inorganic matter and energy. Ironically, this very neural paradigm has itself proposed an alternative use for such a flicker rate, namely a religious object that integrates features of more traditional spiritual symbols such as candles and torches.

    [0021] Moreover, in a theory of how cosmic consciousness may form from inorganic matter and energy (Thaler, 19978 , 2010, 2017), the same attentional beacons may be at work between different regions of spacetime. Thus, neuron-like, flashing elements may be used as philosophical, spiritual, or religious symbols, especially when mounted atop candle- or torch-like fixtures, celebrating what may be considered deified cosmic consciousness. Such a light source may also serve as a beacon to that very cosmic consciousness most likely operating via the same neuronal signaling mechanism.

    [0058] Furthermore, aspects of the present invention provide an object of contemplative focus embodying symbolic meaning of varying significance (e.g., philosophical/religious) due to the fact that the unique fractal rhythms used are those thought to: (1) be exploited by the brain to detect idea formation, and (2) have grandiose meaning as the temporal signature of creative cognition,
    whether in extraterrestrial intelligence or cosmic consciousness.

    1. 20.1

      Not sure that your point carries as that certainly is inline with other writings I have seen from AI.

    2. 20.2

      The problem with Thaler/DABUS being the “face” of the AI-as-an-inventor movement is that Thaler is a crackpot, and the “neural flame” invention is ample evidence of that.

      What uninterested party is going to take Thaler’s allegations seriously when the invention (allegedly) created by DABUS has more in common with L. Ron Hubbard’s Dianetics and Scientology than a typical patent application.

      We’ve all been taught that we need to focus on the message and not the messenger. However, Thaler makes for one really, really, bad messenger, which seriously calls into question his credibility.

      Oh, and somehow DABUS happened to cite several of Thaler’s past works in this neural flame application — yet DABUS alone was the inventor.
      link to patentlyo.com

      1. 20.2.1

        Amd when the Justices ask Dabus or the claimed inventor, will we be in the outer limits if Dabus answers? THEN if the inventor says it was mostly me, what do the Justices say ? That will depend on what Pro SAY thinks is real, or what is truly real? Then if the baby will be split, who does anyone in their right mind believe the inventor will win? DABUS won’t win, unless we are truly in the outer limits. Hopefully not in our life time will DABUS rule.

      2. 20.2.2

        DABUS was merely a first case, and as I have stressed, should NOT be taken as any type of “face of.”

        Not sure what point you are trying to make with “cites of prior.” That could easily be seen as an early AI artifact.

        Perhaps take your own prejudices and place them on the side…

        1. 20.2.2.1

          DABUS was merely a first case, and as I have stressed, should NOT be taken as any type of “face of.”
          Sorry. You don’t get to decide who is the face of the AI debate. Thaler/DABUS stepped up, and no one else has supplanted them. Like it or not, Thaler is leading the charge.

          I can only imagine Thaler being asked to testify before Congress. He’ll be talking about the cosmic consciousness while most watching will have their eyes glaze over.

          Not sure what point you are trying to make with “cites of prior.”
          I thought you were smarter than that. My mistake.

          That could easily be seen as an early AI artifact.
          Or it could easily be seen that DABUS shouldn’t have been named the inventor — rather, Thaler should have been.

          Perhaps take your own prejudices and place them on the side…
          I have no prejudices. Honestly, it is no skin off my back whether AI can be a named inventor or not. I have no deep-seated animosity towards machines. However, I have a thing against du_mb people making crazy claims, which I believe Thaler has done. I believe the guy is a charlatan, and I’m offended that people believe anything he has stated.

          1. 20.2.2.1.1

            Hardly.

            Sure it was the first.

            But by no means can it do more than it did.

            It simply does not touch joint-inventorship, and it did not raise the issue of what that other non-human person – the legal fiction known as Person Having Ordinary Skill In The Art – will reflect on AI as an indicator of state of the art.

            You err in A$$uming that my statement indicates that I was in charge of setting the face.

            I never suggested that.

            I simply provided reasons why it can not be.

  3. 19

    How does, or will, anyone know if an AI machine has filed a patent application, perhaps generated a cursive signature, responded to office actions, obtained an allowance, etc etc etc.

    How many of us have had to consult face to face with an examiner to obtain a patent? Very few, and the USPTO foresees none at all.

    One way to track down an operative human behind such a scheme may be to track the payments. Can AI figure a way around that?

  4. 18

    My question is “if you name AI as the inventor in your patent application, then what version of the AI or AGI you are referring to?” I had enough trouble locking engineers down to a particular CAD model for a patent application and would up being the archive for the entire company of all the CAD models. AI or AGI is changing so rapidly and changing at an increasing rate that it will become difficult to identify the exact AI or AGI used at a particular time. I thought human inventors were difficult to deal. I plied my inventors with booze and gifts to get them to talk about their inventions. I can’t imagine how difficult it will be dealing with AI or AGI. Hall, please open the pod bay doors! link to youtu.be

    Bottom line: I think the USPTO did something right for a change and kicked the AI issue can down the road until it becomes essential to deal with the AI nemesis humanity has been fearing for years.

    1. 18.1

      This relates to an entire set of important questions that wasn’t addressed coherently (and still hadn’t been addressed) in the “software patenting by humans” context.

      Ignoring this obvious issue (and others) and creating scary stories about “how much innovation will not happen if we don’t recognize machines as inventors” is plainly the strategy of this latest tiresome breed of patent maximalist goons.

      1. 18.1.1

        I chuckled out loud with the irony of your projecting (and likely not even recognizing it) with

        This relates to an entire set of important questions that wasn’t addressed coherently (and still hadn’t been addressed) in the “software patenting by humans” context.

        The lack of coherently is ALL YOU Malcolm.

        Own it — if you dare.

    2. 18.2

      “it will become difficult to identify the exact AI or AGI used at a particular time”

      Oh, come on, all that really matters is identifying the True Owner and the kind of people pushing for patent maximalism are all about transparency of property ownership, full and accurate disclosure of conflicts of interest, and providing records and evidence to the Federal government. You can trust them!

  5. 17

    There is no acceptable scenario where AI can be a sole inventor. There should be a human inventor listed and perhaps a checkbox for “Was AI used in coordination of this invention?” or something to that effect. It must always be reviewed and tested by a human before filing of a patent application. The AI can never be interviewed on any followup queries or appear in court to confirm or oppose testimony. Just my 2 bits..

    1. 17.1

      You are on the right track, Mike. With respect to this:

      “There should be a human inventor listed and perhaps a checkbox for “Was AI used in coordination of this invention?” or something to that effect.”

      We are told that “AI” (whatever that means exactly) is already ubiquitous so this ship has sailed. More importantly, what difference should it make? And what extent of “use” would qualify? What if “AI” is used during prosecution? When does the oath happen, at filing (in which case it would need to be updated if the contribution disappeared from the claims or …?) or upon payment of the issue fee or …?

      This is some burning inanity here. The best part is “anon” telling everyone who is asking questions that our eyes are shut while the silly little t w e r p offers nothing but irrelevant b.s. I’ve seen this movie before! It ends badly for the little t w e r p.

      1. 17.1.1

        And you got it wrong (yet again)…

        best part is “anon” telling everyone who is asking questions

        The eyes closed is for precisely the opposite thing going on Malcolm.

        But you be you.

  6. 16

    Nice job at the USPTO function today, Prof.

    It’s a shame that so many of your (naysaying) commentators below keep their eyes clenched so tightly.

  7. 15

    Taking a literalist’s approach, it seems to me that the first human(s) that discovers the invention is the inventor (as 35 USC 101 states, “Whoever … discovers…”) which typically would be the one that posed the question to the AI that generated the invention. If the AI was specifically trained or specifically written/designed to solve the problem solved by the invention, then the one that designed the training set or wrote/designed the AI, respectively, are also inventors (if they are human), since then those activities would seem to be integral to the conception of the invention.

    I would expect that situations in which someone just inputs to the AI “invent an invention,” without further input, and then the AI spits out something that is a useful invention would be extremely rare to the point of not being worth worrying about. Even if on the rare occasion that happens (if at all), the invention would likely not be commercially viable.

    So, although Congressional guidance on this issue would be good, the above framework seems like it could work.

    Admittedly, I doubt our current Supreme Court/CAFC will give us a workable test for determining inventorship of AI inventions. Also, I suspect that the Supreme Court/CAFC will just say that if the AI substantially invented the invention, it is not patentable no matter who discovered it.

    1. 15.1

      Already addressed Mr. Lewis, and no, it is expressly not proper to rely on “discover” when a person having nothing to do with placing an invention into a black box merely happens to be someone opening that black box and reading what lies therein.

      There is ZERO chance (as Malcolm attempted to spin below) of that person having an honest or sincere belief that merely reading someone else’s work makes that person an inventor.

      This is a simple, direct and overriding ethical position. Playing “cute” and trying to use “discover” does not cut it. The person KNOWS they were not the one that placed the item into the black box.

      That item being generated by AI or by some other human does not change the ethics of the situation.

      1. 15.1.1

        “that merely reading someone else’s work makes that person an inventor” How do you know this? No one “knew” about the invention prior to lifting the lid. You presume that there is something/one else doing the invention in your scenario. If this unknown inventor kept the invention in this box, the invention was either abandoned or never made public. If never made public and I claim the invention, who is coming forward to challenge me as an inventor?

        1. 15.1.1.1

          How do you know this? No one “knew” about the invention prior to lifting the lid.

          No – we’ve already covered this and it is abundantly clear to the person opening the lid that THEY did not do the writing.

          That person has NO insight as to any other actions. You seem intent on adding restrictions not present (in either my hypo or in the larger scope of AI implementation).

    2. 15.2

      “ Whoever … discovers…”) which typically would be the one that posed the question to the AI that generated the invention”

      Typically what comes out of AI or any other process of trial and error is a ton of non-inventive doodoo. The “discoverer” of a legal invention is the human being who conceived of it first in a fixed and permanent manner. If I suggest a genetic screen and die before the selection is applied, I’m not an inventor of anything new and non-obvious that results from the screen and I never was. Period. Full stop. The human (or humans) who figure out (i.e., CONCEIVE) of what is new and non-obvious is the inventor. And that’s true regardless of whether a computer is involved or not.

    3. 15.3

      “ I would expect that situations in which someone just inputs to the AI “invent an invention,” without further input, and then the AI spits out something that is a useful invention would be extremely rare to the point of not being worth worrying about. ”

      Even if it was extremely common, why would it be something to “worry about”? If my computer starts spitting out useful non-abstract inventions, then hooray for everybody. What’s the problem? Yay for progress in the computing arts.

      The “worry” for some businesses, obviously, is that if there is money to be made by querying their computer and filing patents on the resultant “inventions”, they want as much of that money as possible because they are greedy slime bags. These patent maximalist types are NEVER satisfied. And somehow they find marks like Dennis from Misery and now he’s doing their dirty work for them.

      Sure, let’s make machines inventors (?!). Sure let’s hurry up and create a separate patent system for inventions obtained with the help of a poorly defined class of computing machine (?!?!). Because … why?

      1. 15.3.1

        ^^^ and yet more evidence of both:
        You do not understand the tech; and
        You are anti-patent, and any assertion from you otherwise is mere gaslighting.

        1. 15.3.1.1

          It is you that never understands anon. Why they even waste time answering your non answers, or even giving you answers to questions you’ll never understand.
          In one word I can describe you, NEEDY

  8. 14

    Haven’t read the other remarks, so this may be a repeat.

    If the Supreme Court gets involved, it will be just one more area of patent law that gets messed up. Leave it up to the Congress.

  9. 13

    Why have we historically cared who the inventor is? Because determining inventorship is the first (and often only) step in determining ownership.

    If AI is the inventor, is it also the owner? What else can AI own? Can it use the royalties from owning the patent to buy your car? See how goofy this line of thinking is?

    1. 13.1

      I’ve mentioned this before but the only reason I can think of for people to push this inanity is that they have a personal stake in the outcome. Specifically, they believe they will benefit by “reaching” through their alleged ownership of a machine’s non-obvious output data to ownership of any resulting patents and (tada!) profits from any actual patented tech.

      Yes that is how s-c-u-m balls who need to get a life think.

        1. 13.2.1.1

          He has no idea what he says. He just thinks it makes him look like he has the answers.
          Later he will say he told you the answers already, with no need to repeat.

        2. 13.2.1.2

          How are they not?

          But seriously, I have provided the basis of the USSC decision of Stanford v. Roche as well as stated the Lockean nature for the Quid Pro Quo basis of turning a human’s inchoate right into a bundle of fully legal property rights.

          The former confirms the latter, and the latter is imbued in the Constitutional grant of authority.

  10. 12

    >In that situation, the patent attorney will be asked to list the human closest to the invention as the inventor

    Behind every AI there’s a data scientists who chose the AI, tuned its parameters based on the desired objective, procured, normalized, and pre-processed the data to a form that the AI could consume *and* produce a result for which the AI is being employed for in the first place.

    Start there to find “the human closest to the invention.” This data scientist may need to be included in the list of inventors, and their work disclosed (and possibly claimed).

    1. 12.1

      I agree on the emphasis on human inputs. The training of the AI based on the applicant’s specific objective is critical, this requires heavy input from data scientists, and the selection of outcomes requires human input from a specialist skilled in the field of endeavor of the applicant. The notion that AI “conceives ideas” must thus be challenged.

      As to the use of generative AI such as ChatGPT for drafting applications, practitioners must be wary of the risk of including client’s confidential information in their prompts. See “Can ChatGPT Draft Patent Applications? ” by Aaron Gin and Yuri Levin-Schwartz link to patentdocs.org :
      “One important issue involving large language models is how they use the information from user prompts. For example, a patent attorney must make sure to not disclose a client’s confidential information through interactions with ChatGPT. Prompts provided to ChatGPT, and likely most other large language models, are not private at this time. Specifically, OpenAI’s FAQ provides the following:
      Can you delete specific prompts?
      No, we are not able to delete specific prompts from your history. Please don’t share any sensitive information in your conversations.
      OpenAI’s Privacy Policy also provides:
      Communication Information: If you communicate with us, we may collect your name, contact information, and the contents of any messages you send (“Communication Information”).”

  11. 11

    Boooooooorrrrrrrriiiiiiinnnnnnnng.

    Nothing requires a patent attorney to ask the client, “How did you invent this?” So don’t ask. Sometimes that information is helpful, for example to tell a story about how non-obvious the invention is, but there’s no requirement to elicit it.

    If a patent results, in litigation the defendant can try to prove that the named inventor is not the inventor. And if it turns out that some computer program helped the named inventor(s) conceive of the invention, so what? As Dennis just reported, under current jurisprudence, that computer program can’t be named as an inventor anyway.

    I’m not seeing where there’s a potential ethics issue.

  12. 10

    If you download and study the specification of the application in issue, including the accompanying drawings, there is nothing to link the disclosed subject-matter with an artificial intelligence and no information about how the artificial intelligence might have been instructed. The factual conclusion, which would be reached by almost any skilled reader, is that invention by DABUS has almost zero credibility. It is reasonable to suppose that this factual conclusion would have been reached by the examiner at the USPTO and all the judges handling the case, and though not expressed in the written decisions would have significantly influenced the outcome; similarly in the UK where the same decision was reached by the UK Supreme Court.

    1. 10.1

      Paul – your arguments as to enablement are not helpful for the different legal point at hand.

      Further, this discussion is NOT constrained to the particulars of DABUS.

    1. 9.1

      6,

      It gets exponentially worse for the authoritarians when the AI is simply let loose (no longer constrained to any initial training).

      Quite in fact, we are already at the point in which different AI’s have multiplier effects from merely reacting with each other.

  13. 8

    Seems like a “problem” that defies human nature and so will never be a real problem.

    An invention is something of value. People fight over things of value. Ain’t too many people gonna sit around and let some computer claim an invention when they can claim it for themselves, which is what they will do.

    Those who control the AI are the inventors on the meaningful levels, and most meaningful of all is the one that points to the entity getting paid.

    1. 8.2

      Seems like a “problem” that defies human nature and so will never be a real problem.

      Seems like your understanding of human nature rivals your understanding of the terrain of patent law.

      Nope, no “real” problem for you to be concerned about at all, marty. None at all.

      Nothing to see here, move along now.

      /s

  14. 7

    It occurs to me that this might be an issue, a potential problem, peculiar to the USA, which the rest of the world does not have. Why not? Because in the rest of the world only the aggrieved true owner of the property in the patent application can bring actions to have ownership shifted to the true owner. We are not yet as far as seeing an AI petition the court for transfer of ownership to itself.

    Throughout the discussion about AI’s as named inventor, a thread of ownership issues has been running in the background. It is fundamental to nail ownership of property accurately, including ownership issues arising from naming the wrong inventor. But why fetish instead over who to name as inventor?

    Any chance of amending the patent statute to take account of AI activity, now and in the future?

      1. 7.1.1

        Not sure that’s an end of the matter. For example, Art 60 of the EPC, very first sentence, reads:

        “The right to a European patent shall belong to the inventor or his successor in title.”

        What more than that does SCOTUS say in S v R?

        Under UK law, under the EPC, inventions by employees can belong, ab initio, to the employer. Not so in Germany, where they are deemed to belong to the employee inventor, ab initio. The point is though, who has the right to challenge Applicant’s choice of name for the inventor.

        1. 7.1.1.1

          Clearly – any attempt to wear EPO spectacles is improper for discussions of US Sovereign law.

        2. 7.1.1.2

          Pardon Potential rePeat….

          Your comment is awaiting moderation.

          April 24, 2023 at 3:53 pm

          Clearly – any attempt to wear EPO spectacles is improper for discussions of US Sovereign law.

  15. 6

    I wonder if the Supreme Court (or anyone else) believes that the implications regarding personhood suggest that patent law is the wrong area to examine this question.

  16. 5

    There is actually an interesting issue noted in this post (an improvement over past posts) but it’s an old issue. To highlight the oldness, let’s paraphrase:

    DC: “many of the resulting claims will be directed to aspects that were first recognized as patentable by the patent attorney. In that situation, the patent attorney will be asked to list the human closest to the invention as the inventor — but, depending upon the circumstances, that listing might turn out to be fraud.”

    Discuss. Start with a determination of the number of times (frequency as a function of patent filings) this common occurrence has presented as a “fraud” issue.

    1. 5.1

      Lol – maybe you are edging towards my position (but just don’t have the heart to admit it).

      This “item of interest” for you is directly related to my prior notations of joint inventorship with AI, when the claimed invention is tracked against the human inventors and none of those human inventors can meet the legal definition of inventor (the notion of “tracking closest to is obviously a euphemism as fraudulently attributing inventorship where such inventorship is lacking).

      With AI — especially in the “joint” cases, it should be evident that we have the analogue (partial as it may be) to a simian taking a photograph.

      The presence of invention is not being debated.
      A fully human attribution — and lack thereof — DOES present an ethical dilemma for the patent practitioner.

      1. 5.1.1

        AI doesn’t invent. It only aggregates from whatever database it is attached to. You have no invention if relying on AI.

        Inventorship issue solved.

        1. 5.1.1.1

          Except not.

          And this is clearly so, given that the inventions of the real humans can be tracked to their respective portions and no human can be tracked to the AI portions.

          Your error appears to show that you simply do not understand or appreciate the technology, xtian.

          In the provided analogy, you simply have photographs that were taken by a simian and it is not ethical to merely “shift” the taking of the photograph to the nearest human.

          In my black box example, the person merely opening the black box to read the invention of another does not know if that item he is reading, placed in the box for him, was invented by AI or by another human. He does</b) know that he cannot rightfully claim inventorship merely by reading what has been placed in the box.

          1. 5.1.1.1.1

            “ the person merely opening the black box to read the invention of another does not know if that item he is reading, placed in the box for him, was invented by AI or by another human.”

            If she has a sincere belief that she is the inventor who wrote the info in the black box, then there is no “fraud”. And nobody will (or should) care unless they have evidence to the contrary.

            Any other inane hypotheticals? This one was silly and boring last month. Worse now.

            1. 5.1.1.1.1.1

              Malcolm – try again, this time do not change completely what I have wrote.

              There is exactly zero (inte11ectually honest) chance of a sincere belief that someone opening a black box and reading what is already there would believe that they invented what they read. They KNOW that they did not write what they are reading.

              It is pretty unbelievable given your emotional rants about “grifters” that you would turn around and have no moral compunction about such a direct falsehood.

              1. 5.1.1.1.1.1.1

                Wow, by amazing coincidence I just stumbled across a black box while hiking this afternoon. I opened it up and there 764 little pieces of paper, each one with an inscription in different handwriting that read “anon is dull-witted, unfunny and dishonest.”

                Pretty amazing that 765 different people could agree like that.

                1. …. this time do not change completely what I have wrote.

                  As expected, you were unable to do that.

                  But do enjoy beating your strawman.

  17. 4

    >In that situation, the patent attorney will be asked to list the human closest to the invention as the inventor

    Or, use the traditional practice of not-claiming the features conceived by the partner and/or using trade secrets for the rest. This kind of thing comes up pretty often in the JDA yours/mine/ours context.

  18. 3

    Couldn’t we make an analogy to an inventor hiring an engineer to implement their conception? The hired engineer isn’t necessarily a co-inventor.

    The “inventor” also still needs to review the output of the AI and figure out if it is workable or viable to pursue.

    Granted, if the “inventor” simply typed in “better mousetrap” into an AI and the AI spit out thousands of permutations, the “inventor” did nothing more than create the prompt and did none of the conceptualization. They merely stumbled upon “someone else’s” notes.

    1. 3.1

      Granted, if the “inventor” simply typed in “better mousetrap” into an AI and the AI spit out thousands of permutations, the “inventor” did nothing more than create the prompt and did none of the conceptualization.
      If one of those permutations was a non-obvious combination, then that would be remarkable and evidence of an AI’s ability to be an inventor.

      However, from my experience, we are not there yet nor will be there at any foreseeable time.

      1. 3.1.1

        “From my experience” counts little when eyes are clenched tight.

        It’s like pretending that simians cannot take photographs.

        1. 3.1.1.1

          “It’s like pretending that simians cannot take photographs.”

          Why bring the anti-patent CAFC judges into the discussion? :-)

        2. 3.1.1.2

          It’s like pretending that simians cannot take photographs.
          At 9 months old, a human baby has the dexterity to grasp a (small) camera and press the button (even if by random). From that, I supposed anon will posit that a 9 month old baby has the mental capacity to be an inventor.

          Yeesh.

            1. 3.1.1.2.1.1

              You keep on clenching tight your eyes to the [horrible] analogy….
              Fixed it for you.

              Come up with a better analogy, then maybe I’ll care. Until then … don’t hold your breath waiting for me.

              1. 3.1.1.2.1.1.1

                Lol / it’s an absolutely brilliant analogy.

                You are confusing your not liking it for the point provided with somehow it being a bad analogy.

                That’s your error. And frankly, one that YOU should care about because it is easy to understand and your refusal to so understand only makes you look f00l1sh.

                1. it’s an absolutely brilliant analogy
                  Pushing a button is not analogous to inventing.

                  because it is easy to understand and your refusal to so understand only makes you look f00l1sh
                  So says the ONLY person making this argument on this blog. While I may not agree with everyone on this blog, I would wager that most here would be considered very intelligent compared to the general populace. That none of stepped up to support your position (despite it being made many times in the past) is evidence against your assertion.

                2. Your logical fallacies abound.

                  I bet you think H it 1er had it right with his throngs of people agreeing with him….

      2. 3.1.2

        “we are not there yet nor will be there at any foreseeable time.”

        That.

        AImania reins. Tulips, anyone?

    2. 3.2

      ^^^ your last two sentences have been explicated in clear detail going on two years now — by yours truly.

      Reminds me of an adage:

      There are none so blind as those who will not see.

    3. 3.3

      icecold: “if the “inventor” simply typed in “better mousetrap” into an AI and the AI spit out thousands of permutations, the “inventor” did nothing more than create the prompt and did none of the conceptualization. They merely stumbled upon “someone else’s” notes.”

      It’s a machine output and if someone looks through the output, identifies something patentable, and obtains a patent they are just as much “the inventor” as someone who saw the same “notes” burning in fire for ten seconds on the side of a rock in the desert. There is no “fraud” here because the inventor was the first human to conceive (as far as the world knows) and nobody will ever contest that.

      A great question here is what kind of a world does Dennis want? Every other patent is going to be challenged as “fraud” because a particular computer’s output wasn’t identified as a co-inventor? That’s where he seems to be going.

  19. 2

    The Supreme Court denied certiorari in Thaler v. Vidal

    Probably the least surprising cert. denial in the history of unsurprising cert. denials.

    1. 2.1

      The ellipsis….

      ?

      Why hide Farley’s post?

      The war probably won’t decide the election but the election may very well decide the war,” is hardly earth shattering or provocative….

  20. 1

    In that situation, the patent attorney will be asked to list the human closest to the invention as the inventor — but, depending upon the circumstances, “that listing might turn out to be fraud”

    You beg the question with the statement above. Why would the listing be a fraud? What ethics are you referring to?

    1. 1.1

      You beg the question with the statement above. Why would the listing be a fraud? What ethics are you referring to?
      Exactly.

      It is far easier to presume that a scenario exists in which an AI might be an inventor than to describe a set of facts in which an AI could be reasonably be described as an inventor (solely or as a joint inventor).

      This is an issue that continually gets ducked by those that what to kick up dust regarding AIs and potential AI inventorship.

    2. 1.2

      Exactly … wrong.

      This is NOT “begging the question,” and the only reason why this appears to be so is a “eyes clenched tight” view OF the question.

      Time to open those eyes.

        1. 1.2.1.1

          Can a simian BE a photographer?

          It is a very different question as to “being named” and “being.”

          This goes directly to the explanation of that subtlety that Wt clenches tight his eyes to.

          Don’t forget that from the start I have stated that AI cannot be granted a patent in the US Sovereign.

          But this has more to do with the grant of power under the Constitution and the Lockean nature of the Quid Pro Quo being one of a human inventor’s inchoate rights having a path to being made into a bundle of true legal rights.

          1. 1.2.1.1.1

            Can a simian BE a photographer?
            There is a difference between pressing a button and being an inventor that you continually ignore.

            One can make a phone call using a modern phone by merely touching a button. People can make a “butt call” when their butt is pressed against the button. Following anon’s logic, a disembodied “butt” is capable of being an inventor.

            that subtlety that Wt clenches tight his eyes to
            Don’t confuse fantasy with subtlety.

            1. 1.2.1.1.1.1

              No such “1gn0ring” by me.

              You seem stuck on wanting to conflate the differences without understanding what transfers from the analogy.

            2. 1.2.1.1.1.2

              Even more important here: nobody is suggesting that if I “butt photo” a picture that I can’t copyright the picture or that the copyright belongs jointly to me and my butt.

          2. 1.2.1.1.2

            Define “photographer.”

            The term “inventor” in the context of this discussion is a LEGAL term. It’s an abstraction created by Congress and the judiciary and one of the boundaries (a good one) is that the term does not include humans.

            Outside of patent law, of course, we know that animals and even machines can “invent”. So. What.

            1. 1.2.1.1.2.1

              Talk about “begging”…

              You clearly need to revisit and read through the Naruto case.

              And reread 1.2.1.1 as well

            2. 1.2.1.1.2.2

              Also recognize that while Congress was granted the authority to set patent law, it is the Constitution (as I have pointed out) that provides the controlling part here.

            3. 1.2.1.1.2.3

              >It’s an abstraction created by Congress and the judiciary

              And the by Constitution itself i.e., could Congress Constitutionally extend inventorship to AI under the Patent Clause? Or does the original public understanding limit them to natural people?

              “Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors…”

              1. 1.2.1.1.2.3.1

                As I have already pointed out, OC, THIS is why AI (which CAN invent, just as much as a simian can take photographs) can NOT be granted a patent, as the (same legal definition) of inventor does NOT carry the Lockean nature of the turning of a human’s inchoate right into a bundle of real property rights under law with the Quid Pro Quo.

                The key is not ANY “different definition” of inventor as much as it is a nuanced understanding of the Constitutional power under consideration.

                Sure, Congress could make the change — with a Constitutional Amendment.

                This in essence is also why Malcolm’s statement is wrong on its face. It is NOT an item decided as much by any branch of the government as it is an item that is in the controlling document OVER every branch of the government.

    3. 1.3

      That was Thaler’s argument – he claims his system, DABUS, created the two inventions he applied for patents on, without any prompting or input from him, so he couldn’t sign a declaration without it being fraud.
      So, can’t file a patent application without naming a human, and – in an identical situation to Thaler’s – can’t file one that does name one.

      But I doubt this will seriously come up, as Wandering through notes at 3.1. AI-*supported* invention will certainly be a thing, but conception will still be in the mind of the person using the tool.

      1. 1.3.1

        Not so — as I have shown in my hypothetical “invention by another placed in a black box and merely opened by someone else.”

        I am curious though as why not have this topic on the Ethics side of the blog…

        1. 1.3.1.1

          Here we go again. The “my inane hypothetical decimates your point” guy is in full flower again.

        2. 1.3.1.2

          I don’t completely get ur hypothetical, but I’ll play along. I open the box. I find the invention. I file for a patent naming me as an inventor.

          Question remains. Where is the fraud and who is going to fight it? And who has standing to do so? Where or whom is harmed?

          1. 1.3.1.2.1

            The fraud is quite clear that merely reading the work of another does not make you the inventor.

            Remember, the person opening the box does not know whether it was another person or an AI that wrote the invention that was placed in the box.

            Whether or not anyone else finds out (and the whole “let the owner fight over it) does NOT change the unethical act of Fraud on the Office for claiming to be the inventor when all you did was open a box and read someone (or something) else’s work.

            There need be no “harm” per se for this to be either of fraud or unethical (of which it is both).

            1. 1.3.1.2.1.1

              If I am the only person to ever open the box, no one else has any idea or proof that I am not an inventor.

              Prove to me otherwise because but for me opening the box, there would never be an invention.

              1. 1.3.1.2.1.1.1

                Xtain,

                Your ethical bar is simply set too low and equates to “it’s ok if I do not get caught.”

                Stop.

                Recalibrate.

                Sound in fact does happen when a tree falls in the forest and no one is around.

                You as the opener of the box cannot know if the item in the box had not been placed in other boxes.

                You DO know that you did not write what you merely read.

                You DO know that YOU are not the legal inventor merely by reading the work already written.

                Attempts to twist this otherwise simply will not — truthfully cannot — change the plain facts of the matter.

                As to the (false) ‘moral imperative’ of “no one else would find out and benefit,” rather than fraud and unethical claiming as one’s own that which is not one’s own, one could simply publish freely.

                I simply do not need to “prove” to you what you already know, what you should know, from the facts of my hypo.

                By the way, there is NO constraint that you are in fact the only person to open the box — the driving point here is being merely the first person opening the box. My prior hypo’s had a further version in which the opening of the box was live-streamed to a great multitude. I asked (of those who want to pretend that mere reading of work of another made that person a legal inventor), what then? Does the entire multitude ‘earn’ that designation of inventor? And then, is it merely a race to file?

                Or, does the mere reading of the one (that one being ‘of the public’) make it so that NO patent may issue regardless of who actually wrote what was placed in the black box?

                1. the opener of the box
                  Just like bad facts make for bad law, bad hypotheticals make for bad arguments.

                  Your “box” didn’t magically appear. One does not simply get a message from an AI saying “I’ve got an invention — why don’t you take a look at it.”

                  Artificial intelligences are purpose built. An AI capable of detecting potential cancer cell sites from an x-ray is entirely different from an AI capable of producing text (as in CHATGPT). If one were to create an AI capable of inventing, a human would have to identify the training data needed, select the type of AI model to employ, depending up on the AI model determine a reward function. Eventually, someone has to evaluate the output. Is the output novel/non-obvious? Is the output functional? Is it enabled? And this evaluation of the output would be needed to train the model. Moreover, what may work for designing a graphical user interface may not work for identifying a new class of drugs.

                  It is exceedingly simplistic to think that all one needs to do is “open the box” to identify the invention. Should a box ever be created that is capable of generating an invention, it would be specifically built for that purpose, and those the specifically built the box would be the inventors.

                  Your simplistic example ignores all that is necessary to create your box. Ultimately, the person who opens the box will very likely have an intimate knowledge of how the box works and the intended contents of the box.

                2. Of the power of my analogies.

                  It is clear that you simply do not like them, but your “liking” is not required.

                  As I have noted, analogies need not be perfect or exacting. The points made are clear — crystal clear.

                3. Of the power of my analogies.
                  I seriously laughed out loud when I read this. You are too funny.

                  It is clear that you simply do not like them, but your “liking” is not required.
                  Liking them has nothing to do with it. They are terrible analogies for the reasons stated above — they omit far too many relevant factors to be of use.

                  The points made are clear — crystal clear.
                  You are a very stable genius as well … LOL

                4. for the reasons stated above

                  Yeah, I am going to call B$ on that.

                  You gave no reasons. All you did was regurge past mindless assertions.

                  Your feelings have really clouded your cognitive abilities here.

                5. You gave no reasons.
                  LOL. Reading comprehension have you down? Don’t understand the complexity and the considerable human effort needed to create a special-purpose artificial intelligence and how this isn’t even remotely comparable to your magical box?

                  Seriously, and you accuse people of squeezing their eyes shut. Projection at its very worst.

                  Your feelings have really clouded your cognitive abilities here.
                  And the projecting continues …

                  It must gall you that no one bites on all the arguments have made in the past about AI. You try so hard, yet no one ever engages you about these really important issues about AI that you want to talk about. It must be hard going through life as a very stable genius. LOL

                6. It’s not my reading comprehension at issue, as you clearly have not kept up with generative AI and how other people (than the ones that merely constructed the box — but not the item placed therein) are generating things not contemplated by the box builders.

                  There is no “gall” for me as rather than “not bite” MOST can grasp the elegant analogy.

                  You — despite your pleas to the contrary — are stuck in your emotional vexation against DABUS and parlay that to mindlessness in regards to any AI.

                  You were behind the times and falling further behind.

                7. …recalibrating…error….no ethical violation found….

                  What is the code of ethics that is violated in the above scenario? Cite ABA model rules. Cite the cannon of ethics. Cite something. Don’t simply recite to me what you feel should be “right.”

                  “You as the opener of the box cannot know if the item in the box had not been placed in other boxes.”

                  Neither can you. But until someone challenges it and provides evidence against my assertion that I am the inventor, I remain the inventor.

                8. How about BASIC ethics?

                  If you know something was not written by you, how in the world would any notion of “not get caught” even begin to move your claiming as yours that you know not to be so even approach being ethical?

                  I simply need not go to ABA or any rules of professional conduct to know this to be wrong.

                  And neither should you.

                  Again — stop. Recalibrate.

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