Artificial Intelligence Has Its Day(s) in Court

Principal Analyst, Advanced Analytics

Summary Bullets:

• In 1950, mathematician Alan Turing published “Computing Machinery and Intelligence.” The document outlines the possibility of intelligent machines that could think and eventually attain consciousness.

• Turing’s paper has generated a debate that is ongoing and is at the heart of current litigation that will likely be decided by the US Supreme Court.

In July 2019, Stephen Thaler, CEO of Imagination Engines Incorporated (IEI), filed two patent applications with the US Patent and Trademark Office (USPTO), listing an artificial intelligence (AI) program as the inventor on both applications. The IEI’s AI system is known as the Device for the Autonomous Bootstrapping of Unified Sentience (DABUS). According to IEI’s patent applications, DABUS invented a flickering light that mimics neural activity and a fractal drink container that allows robots to improve its grip. Not surprisingly, IEI’s website states that the company is “ushering in the dawn of conscious computing” and lists several high-profile companies such as General Electric, Boeing, and Raytheon as well as branches of the US Defense Depart.

To be clear, Thaler is not assigning ownership of the patents to DABUS but wishes to give DABUS credit for the inventions. Unfortunately, IEI’s patent applications were both rejected by the USPTO, noting that the US Patent Act does not allow a non-person to be listed as an inventor. IEI sued the USPTO along with the US District Court for the Eastern District of Virginia, which also rejected IEI’s claims. IEI appealed the District Court’s decision to the US Court of Appeals for the Federal Circuit but was unsuccessful in reversing the lower court’s decision. In explaining its decision, the US Court of Appeals argues that the US Patent Act is vague in its definition of an individual; the US Supreme Court defines an individual to be a human being.

Although IEI has had little to show for its efforts, there are a few bright spots. In Australia, the Full Court of the Federal Court has found that AI can be an ‘inventor’ because Australian law does not preclude such an interpretation, and more importantly, the Federal Court recognizes “the evolving nature of patentable inventions and their creators.” Furthermore, the South African Patent Office, which has no substantive patent examination system, has granted Thaler’s patent, naming the DABUS AI as the inventor. Although the US Supreme Court’s interpretation of the term ‘individual’ means ‘a human being,’ the US Supreme Court has a long history against denying patents based on how inventions are made; the IEI decisions contradict the Court’s interpretation approach in evaluating evolving technology. The IEI decisions were decisions regarding matters of law. In another IEI battle with the US Copyright Ofice, it denied an application for the protection of works of art created by AI. The US Copyright Office opined that it sees no reason to depart “from a century of copyright jurisprudence.” It may make more sense to have the US Congress review the current statutes to account for AI’s role in innovation and art.

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