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US Patent Office: AI is all good, but only humans can patent it

TechBrunchBy TechBrunchFebruary 12, 20244 Mins Read
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The question of where AI fits into the corporate stack is not as simple as it might seem (i.e., “nowhere”). However, the U.S. Patent and Trademark Office today declared that, like other intellectual property, only individuals can receive rights to it. Official protection.

The news came in the form of “guidance,” official policy but not ironclad law, that will soon be federally registered. The guidance document (PDF) clearly states that only “natural human beings” can obtain patents, for clear legal reasons and the basic idea that “patents have the function of encouraging and rewarding human ingenuity.” It has been.

It is not always clear, given, for example, that a company may be considered a person for some legal purposes but not for others. Because they are not citizens, they cannot vote, but because they are corporations, their speech is protected by the First Amendment.

When assessing whether a patent can be granted to an “individual,” the legal question was whether that individual needs to be a human, or whether an AI model can be an individual. Precedent has made it clear (as the guidance summarizes) that a person means a human being, unless specified otherwise. However, how to cite or award AI-assisted invention applications remained an open question.

For example, if someone designs an AI model, and that AI model independently designs the shape and mechanics of a patented device, is that AI a “co-inventor” or “co-inventor”? Or , perhaps because there is no human inventor in this case, the device cannot be patented?

The USPTO's guidance makes clear that while AI-assisted inventions are not “absolutely unpatentable,” the AI ​​system itself is not an individual and therefore cannot legally speaking be an inventor. It therefore follows that in every claim at least one person must be named as the inventor. (Actually, there are some interesting parallels to the infamous “monkey selfie” incident. Copyright must be owned by a corporation, and while there are many different kinds of monkeys, monkeys are not, so obviously Copyright is not granted to a monkey photographed in ) it. )

However, you must prove that you have “significantly contributed” to the invention, which is not always easy. Navigating the documentation on how this is actually defined makes for very interesting reading.

Merely recognizing a problem or having a general goal or research plan to pursue does not reach the level of ideation. A natural person who merely presents a problem to an AI system may not be a proper inventor or co-inventor of an invention identified from the output of the AI ​​system. However, important contributions can be made by the way prompts are created with specific problems in mind to elicit specific solutions from AI systems.

…A natural person who merely recognizes and evaluates the output of an AI system as an invention, especially if the characteristics and usefulness of the output are obvious to a person skilled in the art, is not necessarily the inventor. However, a person who receives the output of an AI system and contributes significantly to that output to produce an invention may be a suitable inventor.

Maintaining “intellectual control” over an AI system does not in itself make one the inventor of inventions produced through the use of the AI ​​system.59 Therefore, a person simply owns or supervises the AI ​​system used in the AI ​​system. Even if he creates an invention without significantly contributing to the idea of ​​the invention, he does not become an inventor.

In other words, there is a kind of rationality standard at play here that anyone applying for a patent already knows, but there isn't much precedent to draw on in the context of AI. This is why guidance exists. Just because someone “maintains intellectual control” over an AI, no one now has to worry about whether all of the AI's output is considered their own invention. .

The USPTO is careful to state that it does not in any way seek to define or limit what AI does or is AI, or how people should use AI. It is simply an application of existing law and precedent to new technology. If Congress passed a law tomorrow stating that AI would be considered a human for IP purposes, the USPTO would cancel this whole thing and develop new guidelines for granting patents to AI. But until then, AI will still be just software, and humans will be rewarded and protected for its work.

The full guidance document can be read here.



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