5 ms·

It seems the status-quo will be maintained for now. I think that's good, there's too many unanswered questions about AI. If AI can create patents, can AI also

It seems the status-quo will be maintained for now. I think that's good, there's too many unanswered questions about AI. If AI can create patents, can AI also publish prior art? It seems only fair, right? But, in that case, the same AI technology used to file 1,000 patents would be used to create a million trillion publications of prior art. If an AI can produce something worthy of patent, then a freely published version of the same would surely count as prior art. We'd end up with the "great tome of prior art" a 500 terabyte download filled with patent worthy ideas but freely published to establish prior art. This is just one of the many things we might find in Pandora's Box of AI patents.

josaka 4y ago
A related issue is whether the availability of AI as a tool for creating innovation should raise the bar for non-obviousness. Both effects could make it harder to obtain patents.
- AlbertCory 4y ago
  This would be called "obvious to try." It's an old concept in patent law, which I argue in [1] should be applied to software. [1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399580 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399580
  - kweingar 4y ago
    Thanks for sharing this paper! I have always struggled to express exactly what my issue is with certain software patents. With this paper I now have the vocabulary (and examples) to explain what I mean to someone outside the industry.
    - AlbertCory 4y ago
      You're welcome. The lawyers don't care, the PTO doesn't care, and industry executives don't care. The only answer is to get a bill in Congress, and start asking every candidate for Senator or Representative if they support it. And make it clear that your support for them depends on a Yes answer.
kodah 4y ago
If you give all the rights of a human to AI, it is possible that AI could be sentenced to "death" (though I'm curious what form that would take). It could also be sued. Then again, we said all these things about corporations and look where that's gotten us. Like you, I think preserving the status quo until those questions are answered is the right thing to do.
- inglor_cz 4y ago
  It could also possibly sue someone else, including other AIs. Turtles all the way down.
  - AlecSchueler 4y ago
    In cases judged by AI judges then?
Bombthecat 4y ago
So, i publish this file. What would be the difference?
IgorPartola 4y ago
Right. Also what defines AI? If I ask DALL-E to draw me a fancy gearbox for an EV and it does and then I use that as inspiration to create a new type of gearbox, did I create it or did DALL-E? If I ask a similar tool to create a fancy shape for a fancy gear I want in a mechanism is my idea now tainted by AI? If my CAD software incorporates a CAD equivalent of copilot, can I no longer use that? Maybe it’s not the AI we should get rid of but patents?
- imperio59 4y ago
  The bigger question is did the thousands of drawings of gears used to train the model in the first place and their creators have any rights to their derivative works. Given the AI's output using the trained weights of its models were in part deduced using their works as training examples, one could argue that creators of the example pictures should have some portion of rights on any output from the AI Model... maybe...
  - Cerium 4y ago
    You could use that argument to instead support that any idea created by the AI is not patentable, since it is derived mechanically from prior art.
    - shon 4y ago
      By that same logic though, isn’t society and technology moving a bit past the idea of prior art? Regardless of who or what generated the patent, because, Internet?
  - pitaj 4y ago
    Doesn't that also apply to humans? We learn things and use them for future creative endeavors without even realizing.
    - ramoz 4y ago
      Yes, commentor above my create a fancy new car tire, but did they invent the tire?
analog31 4y ago
Right. Prior art is about what it is, not who publishes it.
yieldcrv 4y ago
> can AI also publish prior art? It seems only fair, right? What kind of argument is that? That's not even something anybody is debating about? Prior art just nukes the novelty of a claim in a subsequent patent written by anyone, including the whole patentability. The source of the prior art is not important.
- Cupertino95014 4y ago
  Correct. In theory, even if the only way to get it was to walk up to a public library in East Timor and find it in the "card catalog," and it wasn't available anywhere else, it's prior art.
O__________O 4y ago
Nothing stopping a human from running AI to create prior art, AI just cannot be listed as the creator. Related, “Using Artificial Intelligence to Mass Produce Prior Art in Patent Law” (2021): https://vanderbiltlawreview.org/lawreview/2021/03/the-library-of-babel-for-prior-art-using-artificial-intelligence-to-mass-produce-prior-art-in-patent-law/ https://vanderbiltlawreview.org/lawreview/2021/03/the-librar...
- daniel-cussen 4y ago
  It's trickier than that. You can't just plagiarize off your AI's results.
  - nextaccountic 4y ago
    If the AI can't be the author, using their output can't be considered plagiarizing. Indeed if the AI isn't the author it's just a tool, and whoever is using the tool should be the author!
_8j50 4y ago
"AI" is not special. This isn't the movies(right!? :P). If you write a script that tries random combinations of materials and test it against a problem only to find a solution, that is no different than "AI" finding the solution. How a computer generated the product/solution is irrelevant. Even if computers were just as intelligent and sentient as humans they have no rights or recognition by law. They are not members of society, citizens or entities that have rights and obligations under rule of law. A document/proceeding that uses a non-human entity (I would exclude animals but even they have some rights) is by default invalid. But, I say what should be under reason and logic which are not important to many judges or this society as a whole as evidenced by asset forfeiture and how they consider property a subject of prosecution as if property has any obligation or capacity to follow the rule of law. Essentially, the law is whatever arbitrary thing judges feel like with no rhyme or reason other than "this won't get me disrobed/jailed/disbarred". Companies are people, propery is people, people are property if they commit a crime (but not the kind of property that has rights lol). Bees are a type of fish in california (really.), you get the picture the assumption that the law is reasonable is false even though the "reasonable person" doctrine is what supposedly keeps the US legal system running. So in reality, this ruling just reflects what the judge felt like, appeal to a higher court and they might decide AI has more rights than minorities.
colonwqbang 4y ago
Nothing in the judgment seems to suggest that AI cannot produce valid art as in prior art. I would tend to think it can.
AmericanChopper 4y ago
I have no idea what’s supposed to be interesting or novel here. An AI is just software. Software has always been capable of generating IP, or publishing IP. Why would there be any reason to presume that AI software could start filing patents?

josaka 4y ago

A related issue is whether the availability of AI as a tool for creating innovation should raise the bar for non-obviousness. Both effects could make it harder to obtain patents.

AlbertCory 4y ago
This would be called "obvious to try." It's an old concept in patent law, which I argue in [1] should be applied to software. [1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399580 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399580
- kweingar 4y ago
  Thanks for sharing this paper! I have always struggled to express exactly what my issue is with certain software patents. With this paper I now have the vocabulary (and examples) to explain what I mean to someone outside the industry.
  - AlbertCory 4y ago
    You're welcome. The lawyers don't care, the PTO doesn't care, and industry executives don't care. The only answer is to get a bill in Congress, and start asking every candidate for Senator or Representative if they support it. And make it clear that your support for them depends on a Yes answer.

kodah 4y ago

If you give all the rights of a human to AI, it is possible that AI could be sentenced to "death" (though I'm curious what form that would take). It could also be sued. Then again, we said all these things about corporations and look where that's gotten us. Like you, I think preserving the status quo until those questions are answered is the right thing to do.

inglor_cz 4y ago
It could also possibly sue someone else, including other AIs. Turtles all the way down.
- AlecSchueler 4y ago
  In cases judged by AI judges then?

Bombthecat 4y ago

So, i publish this file. What would be the difference?

IgorPartola 4y ago

Right. Also what defines AI? If I ask DALL-E to draw me a fancy gearbox for an EV and it does and then I use that as inspiration to create a new type of gearbox, did I create it or did DALL-E? If I ask a similar tool to create a fancy shape for a fancy gear I want in a mechanism is my idea now tainted by AI? If my CAD software incorporates a CAD equivalent of copilot, can I no longer use that? Maybe it’s not the AI we should get rid of but patents?

imperio59 4y ago
The bigger question is did the thousands of drawings of gears used to train the model in the first place and their creators have any rights to their derivative works. Given the AI's output using the trained weights of its models were in part deduced using their works as training examples, one could argue that creators of the example pictures should have some portion of rights on any output from the AI Model... maybe...
- Cerium 4y ago
  You could use that argument to instead support that any idea created by the AI is not patentable, since it is derived mechanically from prior art.
  - shon 4y ago
    By that same logic though, isn’t society and technology moving a bit past the idea of prior art? Regardless of who or what generated the patent, because, Internet?
- pitaj 4y ago
  Doesn't that also apply to humans? We learn things and use them for future creative endeavors without even realizing.
  - ramoz 4y ago
    Yes, commentor above my create a fancy new car tire, but did they invent the tire?

analog31 4y ago

Right. Prior art is about what it is, not who publishes it.

yieldcrv 4y ago

> can AI also publish prior art? It seems only fair, right? What kind of argument is that? That's not even something anybody is debating about? Prior art just nukes the novelty of a claim in a subsequent patent written by anyone, including the whole patentability. The source of the prior art is not important.

Cupertino95014 4y ago
Correct. In theory, even if the only way to get it was to walk up to a public library in East Timor and find it in the "card catalog," and it wasn't available anywhere else, it's prior art.

O__________O 4y ago

Nothing stopping a human from running AI to create prior art, AI just cannot be listed as the creator. Related, “Using Artificial Intelligence to Mass Produce Prior Art in Patent Law” (2021): https://vanderbiltlawreview.org/lawreview/2021/03/the-library-of-babel-for-prior-art-using-artificial-intelligence-to-mass-produce-prior-art-in-patent-law/ https://vanderbiltlawreview.org/lawreview/2021/03/the-librar...

daniel-cussen 4y ago
It's trickier than that. You can't just plagiarize off your AI's results.
- nextaccountic 4y ago
  If the AI can't be the author, using their output can't be considered plagiarizing. Indeed if the AI isn't the author it's just a tool, and whoever is using the tool should be the author!

_8j50 4y ago

"AI" is not special. This isn't the movies(right!? :P). If you write a script that tries random combinations of materials and test it against a problem only to find a solution, that is no different than "AI" finding the solution. How a computer generated the product/solution is irrelevant. Even if computers were just as intelligent and sentient as humans they have no rights or recognition by law. They are not members of society, citizens or entities that have rights and obligations under rule of law. A document/proceeding that uses a non-human entity (I would exclude animals but even they have some rights) is by default invalid. But, I say what should be under reason and logic which are not important to many judges or this society as a whole as evidenced by asset forfeiture and how they consider property a subject of prosecution as if property has any obligation or capacity to follow the rule of law. Essentially, the law is whatever arbitrary thing judges feel like with no rhyme or reason other than "this won't get me disrobed/jailed/disbarred". Companies are people, propery is people, people are property if they commit a crime (but not the kind of property that has rights lol). Bees are a type of fish in california (really.), you get the picture the assumption that the law is reasonable is false even though the "reasonable person" doctrine is what supposedly keeps the US legal system running. So in reality, this ruling just reflects what the judge felt like, appeal to a higher court and they might decide AI has more rights than minorities.

colonwqbang 4y ago

Nothing in the judgment seems to suggest that AI cannot produce valid art as in prior art. I would tend to think it can.

AmericanChopper 4y ago

I have no idea what’s supposed to be interesting or novel here. An AI is just software. Software has always been capable of generating IP, or publishing IP. Why would there be any reason to presume that AI software could start filing patents?