While it was bound to happen, I didn’t expect it so soon ..indeed we live in nano-second times !

The US Patents and Trademark Office ( USPTO) is inviting responses to questions formulated by it pertaining to Artificial Intelligence (AI) inventions. The idea is to engage with experts and inventors and determine its future guidelines and procedures regarding patentability of AI related inventions. No doubt such guidelines will have impact not only in the US but globally since all IP regimes are now pretty well inter-connected.

 The questions are :

  1. What are the elements of an AI invention ?
  2. What are the different ways that a natural person can contribute to conception of an AI invention and be eligible to be a named inventor?
  3. Do current patent laws and regulations regarding inventorship need to be revised to take into account inventions where an entity or entities other than a natural person contributed to the conception of an invention?
  4. Should an entity or entities other than a natural person, or company to which a natural person assigns an invention, be able to own a patent on the AI invention?
  5. Are there any patent eligibility considerations unique to AI inventions?
  6. Are there any disclosure-related considerations unique to AI inventions?
  7. How can patent applications for AI inventions best comply with the enablement requirement, particularly given the degree of unpredictability of certain AI systems?
  8. Does AI impact the level of a person of ordinary skill in the art? If so, how? For example: Should assessment of the level of ordinary skill in the art reflect the capability possessed by AI?
  9. Are there any prior art considerations unique to AI inventions?
  10. Are there any new forms of intellectual property protections that are needed for AI inventions, such as data protection?
  11. Are there any other issues pertinent to patenting AI inventions that we should examine?
  12. Are there any relevant policies or practices from other major patent agencies that may help inform USPTO’s policies and practices regarding patenting of AI inventions?

See:
https://www.federalregister.gov/documents/2019/08/27/2019-18443/request-for-comments-on-patenting-artificial-intelligence-inventions
for details. Comments have to be provided by October 11, 2019.

I think the conclusions drawn from responses will be far reaching and very interesting. Question No. 3, for instance, is trying to anticipate a situation where an AI entity can as well be considered an ‘Inventor” and so named in a patent grant / application. Indeed some people are already testing this presumption.

Just this month, for example, professor Ryan Abbot formed the Artificial Inventor Project and filed patents applications around the World listing AI machine as the inventor. Look at :
https://futurism.com/scientists-ai-inventor-patent
which says an AI Algorithm ( Dabus AI) is named as the sole inventor of patent applications filed in US, United Kingdom and Europe !!

One can hence imagine/ anticipate a category of inventions I term as M2MI – Machine to Machine inventions – when machines themselves “invent” other machines without human intervention at all, just using AI algorithms which themselves are dynamic and adapt to the situations as they evolve. Who then is the inventor and how will this inventor monitor infringements if any and how will it then enforce its rights ?

Interesting times indeed ! All comments and thoughts welcome !

UPDATE 22nd June 2020 on the DABUS case : In Feb. 2020 , considering a series of cases and rulings, the USPTO denied a petition that DABUS be listed as an inventor. This makes clear where the USPTO stand, at least as on Feb. 2020 !

You can read the USPTO response for law, arguments from both parties and some interesting case citations here.

But the Jury is NOT yet out ! – WIPO has been having a series of discussions with various stakeholders on this, and has published a ‘Revised Issues Paper on IP Policy and AI ‘. It will form the basis of the Second Session of the WIPO Conversation on IP and AI which will be held in July 2020. You can read the paper and join in the discussions via my LinkedIn post here.

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