by Dennis Crouch
Thaler v. Comptroller-General of Patents, Designs and Trade Marks, [2023] UKSC 49.
In a December 20, 2023 decision, the UK Supreme Court has agreed with American courts that an inventive machine is not deserving of patent rights. The underlying case will be familiar to many with Dr. Stephen Thaler of St. Louis seeking to patent a thermal-mug designed by an artificial intelligence machine that he created. Thaler has argued that the AI (called DABUS) conceived of the particular invention in question and also identified its practical utility. The UK Supreme court based its holding upon the text of the UK Patents Act of 1977 as it reached the same ultimate conclusion as the Federal Circuit in Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022), cert. denied, 143 S. Ct. 1783 (2023).
These Thaler cases showcase that under the current patent law regime, autonomous AI systems cannot qualify as inventors entitled to patent rights, irrespective of their creativity. For AI-generated inventions to become patentable, intervention by policymakers to amend inventorship laws would likely be necessary. However, the arguably bigger questions of immediate importance surround collaborative human-AI inventions where both human and machine contribute in creation of a new invention. Thaler expressly disclaimed any human input into DABUS’s inventions, but going forward mixed human-AI inventor teams seem inevitable. Neither the UK Supreme Court’s decision nor the parallel US rulings provide direct guidance on the requisite threshold quality or quantity of human participation in such collaborative inventions to satisfy legal inventorship requirements. Thus, for instance, an open issue remains whether token perfunctory human approval of an AI-devised invention would suffice, or if substantive intellectual contribution is needed. And for primarily AI-driven inventions, are minor tweaks by a human collaborator enough? Or must the human contributor objectively supply the novel concept?
Thaler concerns two patent applications (GB1816909.4 and GB1818161.0) filed by Thaler seeking protection for a food container invention and an emergency beacon invention. The applications expressly stated “Dr Thaler was not an inventor of the inventions described in the applications; that it was and remains his belief and case that the inventions were made by DABUS, a machine powered by AI; and that DABUS ought therefore to be named and recognised as inventor.” He maintained the inventions were autonomously created by his artificial intelligence (AI) system called DABUS.
The Cardiff based UK Intellectual Property Office (UKIPO) rejected the applications on the basis that: (1) “DABUS is not a person, let alone a natural person and it did not devise any relevant invention. Accordingly, it is not and never was an “inventor” for the purposes of section 7 or 13 of the 1977 Act;” and (2) Dr. Thaler failed to properly identify a human inventor per section 13(2)(a) or explain how he derived the right to the patents per section 13(2)(b) given he expressly disclaimed inventorship. Based upon these failures, the UKIPO thus deemed the applications withdrawn for non-compliance with the Patents Act 1977’s requirements. Dr. Thaler unsuccessfully appealed the rejection through the High Court, Court of Appeal, and finally to the Supreme Court which has now dismissed the further appeal.
Although the UK Supreme Court includes 12 justices, only five empaneled for this case, a common practice. The opinion was unanimous and authored by Lord Kitchin who was previously one of the nation’s top patent judges.
The court decided three key issues:
1. Whether “inventor” under the Act includes machines like DABUS. Held: No. An inventor must be a natural person. DABUS is not a natural person, only a machine.
2. Whether Dr. Thaler had any independent right to patents for DABUS’s inventions. Held: No. Mere ownership of DABUS gave Dr. Thaler no right to its autonomous creations.
3. Whether the applications were properly deemed withdrawn. Held: Yes. By failing to identify a human inventor and not demonstrating entitlement through DABUS’s creatorship, Dr. Thaler violated the Act’s requirements.
Lets go through these one at a time. First, the Court considered the meaning of “inventor” under the 1977 Patents Act. Although the law does not directly state that the inventor must be a human, the Court relied on multiple statutory provisions to conclude an inventor must be a natural person and cannot be an AI system like DABUS.
Specifically, section 7(3) defines inventor as “the actual deviser of the invention.” As Lord Kitchin stated, “‘deviser’ here has nothing other than its ordinary meaning, that is to say, a person who devises a new and non-obvious product or process.” Furthermore, he noted section 7(2)’s hierarchy granting patent rights “necessarily references to an invention devised by a person” and contemplates legal entities like corporations claiming through a human inventor. Section 13(1)’s guarantee of the inventor’s right to be mentioned also demonstrates “the Act contemplates that the inventor is a natural person.”
Second, the Court rejected Dr. Thaler’s argument that his mere ownership of DABUS gave him an independent entitlement to its autonomous creations. Rather, under the Act non-inventors only have derivative rights that must have an original source, claimed through a qualifying human inventor under sections 7(2)(b) or (c). As Lord Kitchin stated, Dr. Thaler “has not identified any basis in law on which he acquired such a right through his ownership of DABUS.” Thaler’s reliance on the accession doctrine fails because “[w]e are not concerned here with a new item of tangible property produced by an existing item of tangible property.” Simply owning an invention-generating machine does not confer legal rights in the machine’s creations absent some other recognized legal principle. Further, DABUS is not even a legal person (such as a corporation) and therefore can not transfer rights. “It is not a person, let alone a natural person and it did not devise any relevant invention.”
Finally, the Court upheld the UKIPO’s deemed withdrawal of the applications under section 13(2) of the Act. Dr. Thaler violated section 13(2)(a) by failing “to identify any person or persons whom he believed to be the inventor or inventors of the inventions described in each of the applications.” Naming only the non-qualifying DABUS was non-compliant. Additionally, merely asserting ownership of DABUS failed to adequately indicate Dr. Thaler’s entitlement to its creations in breach of section 13(2)(b).
Although the UK Supreme Court’s decision was grounded in the statute, it was less of a strict textual opinion than US Federal Circuit’s parallel decision in 2022. Rather, in Thaler v. Vidal, the US was able to hang its decision on a single definition of the word “inventor” — holding that the term unambiguously means only natural persons based on express provisions defining inventor as an “individual” 35 U.S.C. 100(f). The UK Court was not able to so easily tie its analysis on a single word but rather took a more holistic, albeit still textual, approach — seeing the 1977 Act’s overall assumption of granting patent rights derived through human creators.
Both courts indicated that they were avoiding making policy decisions about whether AI inventions needed the type of incentives available in the patent system. The following comes from Justice Kitchen’s new opinion:
The Comptroller has emphasised, correctly in my view, that this appeal is not concerned with the broader question whether technical advances generated by machines acting autonomously and powered by AI should be patentable. Nor is it concerned with the question whether the meaning of the term “inventor” ought to be expanded, so far as necessary, to include machines powered by AI which generate new and non-obvious products and processes which may be thought to offer benefits over products and processes which are already known.
These questions raise policy issues about the purpose of a patent system, the need to incentivise technical innovation and the provision of an appropriate monopoly in return for the making available to the public of new and non-obvious technical advances, and an explanation of how to put them into practice across the range of the monopoly sought. It may be thought that the rapid advances in AI technology in recent times render these questions even more important than they were when these applications were made.
This appeal is concerned instead with the much more focused question of the correct interpretation and application of the relevant provisions of the 1977 Act to the applications made by Dr Thaler. This was the approach taken by the Comptroller, the High Court and the Court of Appeal, and rightly so.
Kitchen opinion at 8-50. In the end, both courts refused to accept Thaler’s “vague invocations of statutory purpose over the words Congress chose.” Fed. Cir. opinion.
Asked elsewhere, but not answered (yes, I know, shocking), but how is State of the Art to be treated in view of an invention at date X, properly denied a patent, as the generative advance is deemed to not be able to have a proper human meeting the legal definition of inventor?
As we all know, that State of the Art is measured by another non-human, the legal fiction known as Person Having Ordinary Skill In The Art.
What is the State of the Art (especially by those who would deem creating computers are somehow “not creative”)…?
Let’s aim for better than shallow remarks.
As we all know, that State of the Art is measured by another non-human, the legal fiction known as Person Having Ordinary Skill In The Art.
Your fictional “person” is still deemed to be a human by the courts. You do remember what Judge Kennedy wrote in KSR? Let me remind you of his statement: “A person of ordinary skill is also a person of ordinary creativity, not an automaton.”
Let me repeat. PERSON — NOT AN AUTOMATON.
Let me give you a hint as to why this might be true. An automaton has no bias against combining things that might not have been combined before. On the other hand the Supreme Court has stated that “there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” What is the rational underpinning for a combination that some generative AI could possible identify?
You are the only one person I am aware of who argues that a person having ordinary skill in the art can be (or include) an artificial intelligence. You stand up on your soap box every time Thaler gets smacked down in the courts and try push this pet theory of yours. How long have you been doing this now? A couple years? No one cares.
The Court’s use of automaton does NOT equate to the current AI engines.
I thought that you had said that you had practiced in this area?
Or is this simply (and in a shallow manner) just you letting your emotions STILL get in your way?
“only one person I am aware of who argues that a person having ordinary skill in the art can be (or include) an artificial intelligence.”
Are you saying that they do not?
You are aware (of course) that you cannot have it both ways. It must be either nothing more than State of the Art, or NOT State of the Art (and therefor, inventive).
Your (Hobson’s) choice.
I see two questions here, namely i) what is the state of the art for the purposes of deciding what is obvious (in the sense of being no longer patentable) and ii) how shall we determine what is obvious having regard to the state of the art.
Being in Europe, I don’t understand your difficulties, anon.
The state of the art where I sit is everything already made available to the public by written or oral description, by use, or in any other way. That would include laid open specifications of patent applications that present the output of an AI.
The obviousness enquiry begins with the step of ascertaining what objective technical problem is solved by the subject matter claimed. One then asks whether the state of the art contains any pointer, hint or suggestion to the PHOSITA to solve the problem by asembling the combination of technical features set out in the claim. What the PHOSITA “could” have done is irrelevant. Decisive is what that entity “would” have done to solve the problem.
We are not yet at a point where we can sensibly enquire of an AI what it “would” have done. Perhaps one day we will be, but not any time soon.
But outside the USA it doesn’t matter anyway, because the only party that can dispute inventorship is the rightful inventor and it will be quite some time before an aggrieved AI petitions a court for an order to be atrtributed the rights to which it claims to be entitled.
I am not qualified to give the answer for the USA.
See 8.1.1 – and choose (among the Hobson alternatives).
Serious question: why aren’t some of the authors of these JR papers brought up on disciplinary charges? I and others have pointed out glaring lies and glaring misuses of statistics. If this were the physical science, the professors would be booted out in disgrace. Instead, they misuse statistics for political purposes and are rewarded.
Quick example: the pipeline of black people who can become qualified patent attorneys is not even close to their percentage in the general population. Yet one paper tells us it is. Another example: one paper says all MBA students at top universities are the same for the purposes of who makes it to the CEO position. That is patently false. There are many other variables that could of and should have been looked at like time off for children, GMAT scores, career goals, and so forth.
We need to fundamentally change universities. Go back to merit. Go back to real scrutiny for publishing a paper–not does it meet our neo-Marxist revolutionary goals. Stomach turning that this trash is published on this blog.
And Dennis and Jason, do you think it is OK to publish a blog post that makes obviously false statements like the pipeline for black patent attorneys is not the issue? The fact is that if you are a qualified patent attorney and a black person that you will get many more job offers compared with a white person with the exact same qualifications. The fact is the main problem is the pipeline. There are not enough qualified black people. The black people that are qualified are given preferential treatment over white people. Anyone that has anything to do with hiring knows this. And anyone that has read and studied these issues knows this. Hillary Clinton actually said way back in the 90s and has repeated it many times. And the statistics back this up.
That is reality. And to warp reality into the neo-Marxist narrative your blog posts want to portray, they have to lie.
These authors should be brought up on academic integrity charges.
“Serious question: why aren’t some of the authors of these JR papers brought up on disciplinary charges?”
Serious answer: Academia has LONG been captured, and what you have is a mode of advancement by how best one can signal to controlling dogma.
This is precisely the f@1ling of “peer review,” in which peers have other than meritocracy as their guiding aim (rather, it is the RELIGION of Neo-Marxism, Woke, and the like).
This is no surprise to anyone that has been noting this trend going all the way back to the late 1950’s.
If it turns your stomach here – you will NOT want to look at what is happening to some of the more traditional hard sciences in the universities (and worse – the level of indoctrination in the primary school systems).
Makes me wonder if the answer is a non-profit to sue the professors and universities. And hold them up to public scrutiny. They are using federal funds and publishing political manifestos with glaring lies and glaring mistakes in using statistics.
I mean imagine filing a complaint against Lemley. He’d probably counter sue and probably the Woke would come after your job, family, and threaten your life. You’d need a big organization to deal with the consequences of trying to hold these academics accountable.
Under what basis would you sue?
I think the game plan would be to file ethics complaints and then work out a cause of action. I think there are potentially many some based on federal funding. Some based on the effects of their publications. Some based on them being state employees.
Not certain that would work, as my first thought is: “whose ethics?”
Remember, the way forward in Academia is NOT by way of meritocracy, but by how well one reflects the “Master’s Religion.”
That “religion” has its very own set of “ethical” rules (and those are pretty much anything that advances the Cause is permissible).
As far as the federal funding goes, that too has issues, given Biden’s own Woke edicts of “Equity.”
I think you underestimate the number of causes of action.
Just consider that a professor at a state university is offered a job based on the content of their published papers.
And also underestimate how much may be learned in discovery.
Not trying to guess the number of actions (therefore, not underestimating them).
I was genuinely curious as to how one might proceed – given the nature and extent of the “infection.”
As to learning from discovery, that would be tied to step one (the item that I am looking for particulars to), eh?
We are not there yet.
I am not denigrating your viewpoint, as I am merely trying to see the path that you think that would work.
You must be a summa cum laude graduate of the Trump School of Law.
Your OMB-TDS is showing.
Trump is simply not relevant here, and the mindlessness of the current president would draw closer to your intended slight.
But that is not something that is in your (political) scripts, now is it?
“We need to fundamentally change universities. Go back to merit.”
Ah yes, we need a return to the golden age when college admissions were decided 100% on merit.
Remind me when that was?
Nice strawman – 100%, really? How much lipstick do you want to use?
Now the, do YOU have something personal against merit?
Just asking.
The cl0wn who regularly argues that slavery and affirmative action “are the same thing” is accusing me of making a strawman argument.
Lulz
Way to misrepresent my position.
Try again.
Here’s some “lulz” right back at you (noting, of course, that I can easily predict you will ‘choose’ not to answer).
Since you cannot seem to recognize concept versus comparative (across a range of) E v i 1, what is YOUR view of the Israeli/Hamas situation?
Spectrum there should give you pause, eh?
Merry Christmas, ya filthy animal[s]
Thanks anon.
Since, per his norm, JR has closed one of his posts (actually written by someone else) to comments, I’ll address it here:
In short, broadening the population of lawyers who make it to very top of appellate practice will require a more deliberate approach than “add diversity and stir”; it will require disrupting the rules and norms that exclude and undermine outsiders to the status quo.
The diversity of those practicing patent law directly reflects the diversity of those entering the engineering fields. Diversity has increased in the engineering fields over the years, but that takes time to trickle down to being the person that performs the oral argument at the Federal Circuit. To be a “go to” person for arguing before the Federal Circuit, one needs the requisite law degree, probably a judicial clerkship, and probably 10 years in private practice before a firm feels comfortable having you argue high stakes litigation case before the Federal Circuit. This takes most into their 40s. As such, there is probably a 20 year lag between the diversity of engineering grads and the diversity of those that argue before the Federal Circuit.
But wait, the authors noted:
To restate those findings in a slightly different fashion: we find that, among lawyers arguing patent cases at the Federal Circuit, a government lawyer is 2.3 times more likely than a private-sector lawyer to be a person of color, over 5 times more likely to be a woman, and over 10 times more likely to be a woman of color.
There is a lot that can be written about this, but working for the government (and specifically the USPTO) has its plusses and minuses. One of the minuses is that government pay is awful. Their salaries look to be topping out at $176K. The acting Deputy Solicitor is making $187K. In contrast, Big Law salary is starting at $225K with a $20K bonus. 8th years can be making, with bonus, over $500K. The upside of working for the government is, because the salary is so bad, you will have junior attorneys being given higher level roles (as more senior attorneys look to bank their experience at BigLaw). Another upside of working for the government is the work/life balance. Working in BigLaw (the easiest way to a high-level career) is rough — particularly for those wanting to have a family. Consequently, I suspect that the population of government attorneys is more diverse in just about every field — not just patent law.
These are two major factors as to why the government is generally more diverse. The attorneys tend to be younger (when tends to be more diverse) and a healthier work/life balance attracts more woman, who tend to be value that more than men. I’m generalizing here and as such, individual data points may not necessarily line up with the generalizations. However, this generalization still applies over the population.
Some other things to consider, the authors of the article think that because the government can be more diverse then private appellate practices can equally be diverse. The flaw in this logic is that both groups are pulling from the same population, which has the same lack of diversity. Being (generally) more attractive (in certain respects), the government gets more than their fair share of women and POC. However, changes by private appellate practices won’t change the population. This is a zero sum game. Adding to A requires taking from B. While the distribution within the population changes, the population does not.
While it likely exists in certain places, I have personally not witnessed any structural causes of disadvantage and exclusion in this profession. The cream eventually rises to the top regardless of one race or gender. Clients care far far far less about the color of the skin of who is arguing their case than they do about winning the case.
…which is why the likes of Top Virtue Signalers (yes, I am looking at you Harrity), will mewl and slink away from Mansfield tracking – quotas by any other name, and eminently the very ISM that they proclaim that they want to fight.
The notion of meritocracy is always met with the phantom of “systemic” (in a religious fervor).
I don’t have time to go into it, but their paper is trash. It is not scientific and is based on Kendi’s principles that if there is disparity, then it is not due to cultural differences or merit but racism.
Note too the glaring lie that there is not a pipeline problem. The number of black attorney with a technical degree is about 1/4 the rate as for white and Asian Americans. So, you catch them at big lie and are supposed to believe the rest of the nonsense.
Note too the assumption that the small number of federal circuit attorney that do well at the federal circuit are some type of insider game and not because of merit. I’ve known some of those people that regularly argue before the Fed. Cir. and who work for the best firms. They are fantastic attorneys and the large law firm select only the best to do the federal circuit arguments.
Again, just trash that wants to set up a Neo-Marxist society with quota systems and DEI/ESG officials controlling who gets what job.
Just disgusting. Go to China.
Note too that anyone that has worked at a big law firm that we all know that if you are black person that it is like ten times easier to get hired and about ten times easier to get put on a partner track.
4% of the hires over the last four years at Fortune 100 corporations were “white people.”
The anti-white discrimination is massive. And these “researchers” are part of the problem.
Grandpa needs a new pillowcase for Christmas.
Maybe Biden can give up the one he got from his idol Byrd…
“The anti-white discrimination is massive.”
Imagine being so bra!n dam@ged that you actually believe this.
So, 4% of the people hired by Fortune 100 companies over the last four years were “white people.”
Why is it that the Woke never deal in facts and reality only their perception of reality that they receive from the indoctrination.
“Imagine being so bra!n dam@ged that you actually believe this.”
I have to have a high degree of skepticism on a number like 4%.
We would be seeing upwards of over 30% unemployment numbers were that 4% number be accurate.
That being said, the level of 4% does NOT mean that RAMPANT anti-white discrimination is not present. Discrimination simply need not rise to the level of someone being hired or not.
The entire Woke protocol of the Sprint Left folk is dependent on anti-white discrimination. “Equity” is merely a 1984-ism for employing the very thing that the Sprint Left “say” is bad (for their preferred identity groups).
To ‘quote’ Harvard President Gay, “Darkness cannot drive out darkness: only light can do that. H @te cannot drive out h @te: only love can do that.“
The 4% is a widely reported fact.
Thanks – I’ve never seen it. Would you happen to have a source?
Somebody else is also using the JR handle since I didn’t comment on the diversity issue.
My oh my the filter is finiky this morning…
Your comment is awaiting moderation.
December 22, 2023 at 9:02 am
Please Pardon Potential re(P)eat….
Your comment is awaiting moderation.
December 22, 2023 at 9:00 am
This ‘JR’ being referenced is:
Jason Rantanen
Professor, University of Iowa College of Law
Inclusivity does not extend to different narratives.
Thanks anon. I figured you were referring to somebody else.
Just to be clear, it was Wt that used the abbreviation of
“JR” – I just provided the ‘context.’
There are two advantages to being a government lawyer:
1. They do not have to be a member of a bar, any bar. As a result they cannot be disbarred;
2. No one every gets fired for being incompetent.
So… no accountability then…?
Is that really a factor that “The Equity” needs to rest upon?
Dennis, your concern with the status of joint human/AI inventions might be something that is largely peculiar to the US system. We can draw from Lord Kitchen’s opinion (and I believe that this would apply in Australia, also, and probably many other jurisdictions) that it would be sufficient, to satisfy the requirements under the UK Parents Act, to name a single human inventor, and for the applicant (if different from the inventor) to derive the legal right to apply from the named human inventor. The Act does not concern itself with the sophistication or power of any tool or other machine that the named inventor might have used to devise the invention.
The UK Act, in particular, does not provide for any person to come along and challenge ownership of a patent on the basis that the named inventor was not the true (or only) inventor unless they have standing, i.e. a legitimate claim of their own to inventorship. We will need to recognise AI as having (legal) personhood before it could bring such a challenge. Birss LJ recognised this in his dissenting opinion below, but didn’t see it as a barrier to the application proceeding on the basis that Thaler had completed the paperwork based on his genuine beliefs. The question of whether an AI “should” be named as a joint inventor therefore cannot arise in practice.
My prediction is that, outside the US at least, it is likely that we will move (further) towards a position in which legitimacy of ownership is more important than inventorship. This is already largely true in Australia (and a number of other jurisdictions with which I am familiar) where the omission of an inventor (for example) is largely irrelevant if the missing inventor was also employed by the same applicant/owner company, because the variation in inventorship has no impact on entitlement.
Good comment, Mark. As you point out, in many non-US jurisdictions, only the aggrieved party, wrongfully not named as inventor, can challenge ownership.
Interestingly for US readers, the EPO has very recently changed its jurisprudence on recognition of Paris Convention priority (and thereby crimp off a growing flood of litigation in which third party opponents at the EPO challenge recognition of Paris Convention priority when the US priority application was filed by an inventor but the subsequent PCT was filed by a corporation). Going forward, the circumstances in which a challenge to priority will succeed will be very rare.
The writing on the non-US wall seems clear: to focus exclusively on what really matters, namely ownership (rather than who or what to name as inventor).
Inventorship and ownership are two very different things.
What good is your supposed lack of ability to challenge when an improper inventorship issue prevents the patent holder from effectively enforcing the AI-as-inventor laden patent?
More to the point of Mark here (and Malcolm below – that should be a clue as to the company being kept), the issue simply is NOT “human using a tool.”
The DABUS case is clearly showing non-human invention. This has very different impact to co-inventorship that the likes of Mark are STILL clenching tight their eyes to.
It has now been several years since I first invited meaningful discussion, and more than a year since Generative AI’s have burst into widespread use, and yet, the eyes remain clenched tight, and the lips remain sealed.
“ the eyes remain clenched tight, and the lips remain sealed”
On the contrary, many of us are always looking for new ways to mock your insipid, ceaseless, and arrogant inanity.
New ways?
Here’s a hint: you will definitely need something, as what you have done so far has been nothing but a
F
A
I
L
for you.
Here (though) is something that YOU can “look[_] for new ways” to answer (seeing as you have refused to share where you stand):
Which side of the Israel/Hamas conflict do you support?
I know, I know, the Sprint Left crowd is rent asunder with this topic, and you may be placing many of your (otherwise) Sprint Left brethren into that ‘@wful’ One-Bucket, but come now Malcolm, this is a simple question to answer.
Why have you not answered?
What is your answer?
Will we all be greeted with that sound of crickets, yet again?
and I am shocked, shocked I tell you that Malcolm has yet again disappeared…
link to patentlyo.com
Easy A(nswer): yes, the crickets again.
The DABUS case is clearly showing non-human invention. This has very different impact to co-inventorship that the likes of Mark are STILL clenching tight their eyes to.
The DABUS case is clearly alleging non-human invention. Fixed it for you.
Moreover, I question exactly what did DABUS produce. What was it that DABUS produced that led to the two patent applications that were filed? What was the disclosure? Until the original disclosures are made public and subject to scrutiny, I’m not going to agree with the claim that non-human invention was shown.
It has now been several years since I first invited meaningful discussion, and more than a year since Generative AI’s have burst into widespread use, and yet, the eyes remain clenched tight, and the lips remain sealed.
A couple problems.
First, as it pertains to the “several years,” the DABUS applications were filed over 5 years ago. One would think that a computer system truly capable of invention would have invented thousands, tens of thousands, hundreds of thousands of things over the past 5 years. Why haven’t we gotten anything more than a non-enabled container with fractal surfaces and a flickering light with next to no utility?
Thaler could easily get Congress to pass a law that allows for non-human invention if he could show that DABUS generates useful inventions. All he has to do is present some number (maybe 10 or 20) of really useful invention generated by DABUS and say that he has hundreds/thousands more capable of being disclosed should Congress allow for patent protection. Congress isn’t composed of the smartest individuals, but most would recognize a gift horse if presented.
Second, you don’t do meaningful discussions. For that reason, I have long stopped interacting with you but for a couple of exceptions.
Let’s deconstruct your missive in reverse.
“Second, you don’t do meaningful discussions.
This is objectively false.
First, as to patent matters, we are on the same page for nearly all matters discussed on these pages. The GENERATIVE AI issue happens to be one that we do not agree on. This alone limits the sphere in which you and I even engage in discussions.
That being said, the sum total of your position is that DABUS is a fraud and there is no ‘there’ there. IT is clearly NOT a matter of ‘doing meaningful discussions’ if one simply does not agree with your singular point of view, and for that reason YOU walk away.
YOU are the one not “doing” meaningful discussions (and DO fall into the group that I call out) expressly because you feel that the singular case of DABUS does not merit exploring the legal implications.
It should be well evident at the close of 2023 with GENERATIVE AI and self-teaching AI systems that display emergent capabilities that the legal discussion points simply do NOT hinge on the singular instance of DABUS.
I have pointed this out to you many times now, and yet, you cling to your ‘feelings’ and refuse to look forward.
Pulling the Malcolm-like “Accuse Others” is very much beneath you.
As to your view that a lack of a multitude of follow-on filings of inventions is somehow “proof” of the (singular) ‘fraud’ of DABUS (which – again – has no bearing on the engaging of the legal discussions), there is a quite easy explanation, even beyond the rather evident “showmanship” aspect of the two cases being explored around the world. First, I have never disclaimed that an aspect of the ‘show’ is precisely being done to expand a legal point, as opposed to pure innovation protection. You are in error to insinuate that such “pure inovation protection” ALONE somehow must be present. Second, as you are well aware, this TEST case cannot be cheap. Why would anyone advance even a small handful into the expensive process until the test case has run its course? In your emotive haste, you disengage your reasoning and skip right over points that detract from your feelings. You want to see ‘gift horse’ even before the barn doors HAVE been opened. That’s not the best logic there.
As for the inane, “Thaler could easily get Congress to pass a law that allows for non-human invention if he could show that DABUS generates useful inventions.”…
Have you SEEN the mess of 101? If THAT cannot move Congress off its duff (without insertion of Trojan Horses for ‘Stakeholders’), and there are certainly useful inventions being chilled for a DECADE now, do you really think a fundamental shift by Congress would be so easy?
And that is even considering whether Congress HAS that authority! Do not forget that the Constitutional Clause does not exist in a vacuum, and is there firmly tethered to the Lockean view that undergirds the understanding of the writers of the Constitution for consideration of such phrases as “life, liberty and property.” There IS an underlying necessity that the inchoate idea to be transformed into a basket of personal property rights MUST be that of a real person. Congress cannot render a law beyond its Constitutional authority. The path then, would not fall under the light of the Patent Clause.
As to your intro of “alleging non-human invention. ” and “I’m not going to agree with the claim that non-human invention was shown.” this is nothing more than your stubborn feelings.
Get over yourself.
This is objectively false.
LOL.
It should be well evident at the close of 2023 with GENERATIVE AI and self-teaching AI systems that display emergent capabilities
I write patent applications in this space (for a couple years now). It isn’t as special as people make it out to be.
As to your view that a lack of a multitude of follow-on filings of inventions is somehow “proof” of the (singular) ‘fraud’ of DABUS (which – again – has no bearing on the engaging of the legal discussions), there is a quite easy explanation, even beyond the rather evident “showmanship” aspect of the two cases being explored around the world.
It would be nice if you actually stated my position accurately. My position is that Thaler’s two applications are junk. I would be MORE THAN HAPPY to debate that point.
This point aside, I’ve wondered why DABUS hasn’t generated additional inventions IN THE 5 YEARS since? Why hasn’t DABUS come up with a million/billion ideas in that time? Why hasn’t DABUS built upon the ideas that it generated 4 years ago or 3 years ago or 1 month ago? I’ve NEVER said it was proof of fraud. However, if Thaler/DABUS fail to do something that would greatly help their cause, I have to ask the question of why?
First, I have never disclaimed that an aspect of the ‘show’ is precisely being done to expand a legal point, as opposed to pure innovation protection. You are in error to insinuate that such “pure inovation protection” ALONE somehow must be present.
FYI, don’t put something in quotes that I did not write. I assume you know the correct use of quotes. Regardless, I don’t know what your point is. Thaler is engaging in this “show” (your word, not mine) to expand the rights of artificial intelligence. He’s already admitted that.
Second, as you are well aware, this TEST case cannot be cheap. Why would anyone advance even a small handful into the expensive process until the test case has run its course?
Wow. I know you are smarter than this. If you have to write a brief before the Board and have 8 good arguments and 2 weak arguments but only time to include 2 arguments, you don’t include the 2 weak arguments — you include the BEST arguments. Similarly, if you only have time/money to prosecution 2 applications, you don’t prosecute 2 exceptionally low quality applications — you prosecute the best applications. You prosecute applications in which impartial observers go “wow … that is a great idea … we need more ideas like this.” You don’t prosecute applications in which an impartial observer goes “these ideas are not only half-baked, they are either not enabled or completely lacking in any real utility.” Moreover, when one of the applications (the flickering light application) cites many of Thaler’s own works, you really have to wonder whether it was DABUS that generate the idea.
In your emotive haste, you disengage your reasoning and skip right over points that detract from your feelings. You want to see ‘gift horse’ even before the barn doors HAVE been opened. That’s not the best logic there.
Did you have a point to make here? This is some random blabbing that doesn’t address any of the specific issues/facts.
Have you SEEN the mess of 101? If THAT cannot move Congress off its duff (without insertion of Trojan Horses for ‘Stakeholders’), and there are certainly useful inventions being chilled for a DECADE now, do you really think a fundamental shift by Congress would be so easy?
Identify a half-a-dozen cures for genetic diseases, a few types of room-temperature superconductors, a transmitter/receiver that can more efficiently use spectrum, a new material for semiconductors that extends Moore’s law another couple generates, a battery formula that is 5X more efficient in storing energy, a new blade configuration for windmills that increases energy generation by 20% and Congress would be jumping all over this.
Money talks, and most of the inventions I listed above would lead to huge cost savings for this country and would represent create technological leaps that could fuel a manufacturing revolution in this country. There would be so much interest in the DABUS technology that Congress would be forced to act (one way or another). A flickering light, however, is a non-event. A non-enabled container (that creates far more problems than it solves) is a non-event. Extraordinary claims require extraordinary evidence. You’ve seen this quote by Carl before as I have raised it before regarding this issue. If Thaler is going to make an extraordinary claim, he better have really good proof. So far, he has produced claims — not proof.
Do not forget that the Constitutional Clause does not exist in a vacuum, and is there firmly tethered to the Lockean view that undergirds the understanding of the writers of the Constitution for consideration of such phrases as “life, liberty and property.” There IS an underlying necessity that the inchoate idea to be transformed into a basket of personal property rights MUST be that of a real person.
No one in Congress cares about this. Let me repeat. No one cares. Let me repeat once again. No one cares. Go testify before Congress when an AI bill involving inventorship is up for consideration and start talking about “the Lockean view” (note the correct use of quotes) and you’ll have eyes glass over in about 30 seconds.
Congress cannot render a law beyond its Constitutional authority. The path then, would not fall under the light of the Patent Clause.
Congress can do whatever they want so long as the Supreme Court allows them to do it. And while the Supreme Court may have people that might be more receptive to your arguments, my guess is that no one would ever make your arguments before the Supreme Court. You might get some play in an upper-level philosophy class, but that’s about it. No one cares … except for you.
As to your intro of “alleging non-human invention. ” and “I’m not going to agree with the claim that non-human invention was shown.” this is nothing more than your stubborn feelings.
Since we don’t have any facts that helps Thaler (just mere allegations), then I have no problems sticking with my “feelings,” as you call them.
You are all crazy. Ai can run on it’s own. As long as you stick to rules of engagement. Label it as it is. It should not be in the constitution. Because if it was allowed how far afield is this country going? It is already unrecognizable in so many countries.
Sorry I too went off the rails you always refer to
Ai is going to happen no matter how. So give it its own road with rules.
“I write patent applications in this space (for a couple years now). It isn’t as special as people make it out to be.”
I do as well – It IS “different” as most common people make it out to be, no doubt. But the legal principles are STILL under proper scrutiny (by others – as I have shared; not by you and those unusually quiet on this blog).
Your “reply” does not address the actual points of self-teaching and emergent capabilities. I thought you wanted a deep conversation. Why are you being so shallow?
“It would be nice if you actually stated my position accurately.”
Oh, but I have. Your position is ALSO solely resting on your feelings about DABUS. That is beyond shallow. Again, I thought you wanted a deep conversation?
“This point aside”
? What point precisely are you trying to “put aside?”
You then launch BACK into a point that I have already addressed vis a vis additional filings. Are you aiming for a record shallowness?
“FYI, don’t put something in quotes that I did not write. I assume you know the correct use of quotes.”
Do you know how shallow it is to elevate form over function on a blog? This is not a place for the grammar Popo.
“Regardless, I don’t know what your point is. ”
Maybe get over yourself and ‘proper grammar,’ elevate your game over the shallow view (no doubt influenced by your reticence to let go of your feelings over DABUS), and pick up your game.
“Thaler is engaging in this “show” (your word, not mine) to expand the rights of artificial intelligence. He’s already admitted that.”
Yes – the point, oh shallow one, is that one can do that AND do more and STILL be pressing for the legal points that he has been doing. You seem stuck in a rather shallow rut.
“Wow. I know you are smarter than this.”
I am – apparently you are not.
The work citing prior works does not hold for what you insinuate it does. I thought that you had said that you worked in this field. How do you make a mistake like that?
In my reply to my CLEAR point of you being trapped in your emotions, the fact that your “best” reply is “Did you have a point to make here? This is some random blabbing that doesn’t address any of the specific issues/facts.” shows how shallow you are. You cannot even see how trapped you are or the FACT that your judgment IS clouded by your emotion IS in fact ON POINT.
“… and Congress would be jumping all over this.”
Are you somehow now claiming that the current state of 101 is not an utter mess? Do I need to feed you your very own posts on this topic?
Your (attempted) rebuttal is stillborn.
“No one in Congress cares about this. Let me repeat. No one cares. Let me repeat once again. No one cares.” (and subsqeuent paragraph)
Maybe – just maybe, as an attorney longing for a DEEP conversation, you can do more than just say “meh” and instead recognize the deeper point being advanced. Deep almost always carries with it a sense of “not being easy.” How do you not know this?
That is, if you really want more than a shallow regurge of your emotions. You do seem more than comfortable (oh wait, here G Popo: “I have no problems sticking with my “feelings,” as you call them.”) being the shallow arse that such entails – and thereby proving my point way up at The 4.1.1 that started this subthread.
(another bit of advice for you: you might want to put that shovel down – it’s not going to get you out of that hole you have made for yourself)
shallow
Did this come up on your word-of-the-day calendar?
Do you know what is a great example of being shallow, go to your browser and use the find function. Type in “you” and search or posts. When you compare your most recent post to mine, the word “you” is far more prevalent in your comments than mine. There are many instances in which I use “you” as a indefinite pronoun (as an alternative to “one”). That aside, most of my comments are addressing the issues. In contrast, the vast majority of your arguments are attacking me. They don’t address the issues. Rather, your comments mostly focus on trying to belittle me. That is an example of being shallow. Attack my points – not me.
Your “reply” does not address the actual points of self-teaching and emergent capabilities.
Woo hoo … it uses feedback loops. Nothing terribly exciting there.
I thought you wanted a deep conversation. Why are you being so shallow?
One part of a conversation is that one side explores the depth of the other side’s points and the common way of doing that is by asking questions. However, like your alter-ego, MM, you don’t answer questions. And until you answer questions, there is no depth to your points – in other words your points are “shallow.”
Your position is ALSO solely resting on your feelings about DABUS. That is beyond shallow.
LOL. I keep asking for the FACTS about DABUS. However, no one wants to talk about the FACTS. You get all tingly inside about Thaler’s allegations, but you avoid the FACTS.
Do you know how shallow it is to elevate form over function on a blog?
It’s called common courtesy and respect for norms that people in our field use. If you use quotation marks, what is contained therein better be a quote.
Yes – the point, oh shallow one, is that one can do that AND do more and STILL be pressing for the legal points that he has been doing.
Yeah … so what? Thaler has an ulterior motive for why he is pressing his legal points – we are all in agreement here.
The work citing prior works does not hold for what you insinuate it does. I thought that you had said that you worked in this field. How do you make a mistake like that?
Nice of you to avoid my main point, which is that the applications are a JOKE. The technology is a JOKE. The patent drafting is a JOKE. The claims are a JOKE. Thaler’s flickering light patent reads like a bad version of L. Run Hubbard’s Dianetics. Seriously, if one is to explore legal issues regarding artificial intelligence, do so with something more serious than joke applications.
I don’t recall you ever addressing the substance of Thaler’s patent applications. And it is easy to figure out why. Anyone would be embarrassed to try to defend what is contained therein.
Are you somehow now claiming that the current state of 101 is not an utter mess?
This is why I avoid having conversations with you. Nothing in my comments insinuate that “the current state of 101 is not an utter mess.” You are merely deflecting from the issue with a tangent (i.e., 101).
This is why I avoid addressing you (for the most part), the vast majority of your comments are personal attacks.
“. Attack my points – not me.”
You don’t have any.
That’s the point – your “rebuttal” was pure nonsense – and (quite in fact, the ‘word of the day’), shallow.
The funny thing (of course) is that you whined about me, that I “don’t do meaningful discussions.” (yes, Grammar Popo, I checked for “proper quotes”
), and it is YOU that refuses to do meaningful discussions.
NONE of what you said addresses the point of legal impacts from generative AI.
…and Wt, you only prove my point (again) with your insistence on ONLY focusing on the ‘facts’ (your assertions) of the DABUS case INSTEAD OF the legal items of note that should LONG have been under discussion.
third try a charm?
If Lee (in the ABA Presidential Speaker Series) can admit computers create (even if done in a h@m-f1sted manner), why can’t you?
link to americanbar.org
If Lee (in the ABA Presidential Speaker Series) can admit computers create (even if done in a h@m-f1sted manner), why can’t you?
You’ve confused being able to ‘create’ with being ‘creative.’ You’ve oftentimes referred to Naruto (i.e., the selfie monkey). While Naruto was instrumental in creating a picture the monkey was not creative. There was no intent to take a picture. Rather, Naruto was exploring his environment and accidentally touched the right button at the right time. The selfie was an unrecognized (by Naruto) accident.
A computer that creates is not being creative. It is an automaton that creates works — as directed by its human creators. Arthur C. Clarke wrote “any sufficiently advanced technology is indistinguishable from magic.” In this instance, the seemingly magical creations of AI merely hide a very sophisticated technology.
And BTW, you should be ashamed of yourself for relying upon anything that Michelle Lee says. She was a pox on the US patent system. And if there is a Patent Hall of Fame, she belongs in the Patent Hall of Infamy.
Using as an example is hardly “relying,” you are wr0ng in the legal sense for the Simian Selfie case, and your “view” of emergent behavior is woefully off – if that was what that was (see for example: link to instagram.com ).
Three swings, three misses, back to the bench with you.
… the longer full version of the podcast (see link to open.spotify.com ) for all kinds of AI impacts that you may have fallen asleep on.
As is typical with your comments. You lead with the conclusion and omit any analysis or discussion of facts that support your conclusion.
You confuse solid points for conclusions.
Try again (or perhaps more accurately, for the first time, without your emotional blinders on).
“The writing on the non-US wall seems clear: to focus exclusively on what really matters, namely ownership (rather than who or what to name as inventor).”
…and for the non-US Sovereigns, you still have fraud and proper title tracing issues.
There is NO (real) benefit in not naming the proper inventive entities.
This was expressly one of the direct points being made in the DABUS case.
Great write-up. I thought. It’s all in there, very clearly put, without any more words than necessary. Except perhaps here:
“DABUS is not even a legal person (such as a corporation) and therefore can not transfer rights.”
Dennis, can you not reduce the total number of words by one, by writing your “can not” as “cannot”? And wouldn’t that be necessary anyway, to capture correctly the meaning you wanted to convey? DABUS has no capability to decide not to transfer rights, right?
Or am I completely barking up a gum tree? I mean, is this just another occasion where British English is different from American English?
Incidentally, in another patent blog (see Link below) there is today a nice piece about “patent profanity” which readers might enjoy.
link to ipkitten.blogspot.com
The question as to whether the use of a tool, or an animal, nullifies an invention conceived by a human and applied for by a human would seem, in light of many, many decades of history, to answer itself: of course it doesn’t.
The more interesting questions that should be answered are the relatively recent ones: why do we allow the patenting of allegedly “new” data processing logic and functionality without disclosure of any novel structure? And what happens when the worst examples of humanity decide to blow up the USPTO with unexplainable mega-reams of computer-generated filings?
conceived of….?
Go back and see my ‘black box with invention being brought into a second room” thought experiment.
A human merely reading the invention of another is not legally an inventor.
Period.
A machine is not “another”.
Thanks for playing.