http://ipkitten.blogspot.com/2020/12/is-it-time-to-move-on-from-ai-inventor.html
This Kat has long argued that the discussion of AI inventorship is premature (IPKat: The mirage of AI invention – nothing more than advanced trial and error?). However, the subject of AI inventorship remains (for want of a better word) trendy. Following the widely publicised submission of two patent applications purporting to have an AI inventor, the media and conference circuit was awash with discussion on the topic. However, in a welcome injection of realism into the debate, the majority of contributors to a recent USPTO public consultation on the topic (reported on IPKat here) were of the opinion that AI is not yet capable of invention.
As previously discussed on IPKat, it is difficult to comprehend how an algorithm that is anything short of an artificial general intelligence (AGI), can be said to be capable of invention (IPKat: The first AI inventor – IPKat searches for the facts behind the hype). However, we are currently far away from anything that would approach an AGI. The capabilities of today’s AI algorithms are restricted to narrow and well-defined tasks, as can be seen from a brief glance over Google/Deepmind’s patent portfolio (see here). A major theme identified by the USPTO from the consultation results was that, based on the majority view that AGI has not yet arrived current AI could neither invent nor author without human intervention. As the AIPPI commented in their submissions to the consultation:
the current state of AI technology is not sufficiently advanced at this time and in the foreseeable future so as to completely exclude the role of a human inventor in the development of AI inventions.
Part of the problem with the debate surrounding AI inventorship is that the discussion has largely played out in the absence of any input AI academia and industry. The lack of interest from AI academia and industry may itself tell us something about the relevance of the issue beyond legal theory. Notably, the “AI inventor” patent applications were not filed by a leading AI academic or AI research company, but by the eccentric Dr Thaler with the support of legal academics. The question of AI inventorship seems to be considered as irrelevant by broader AI academia and industry. Notably, leading AI research company OpenAI (developers of GPT-3 language generator) did not choose to comment on the topic of AI inventorship in their submission to the consultation, being more concerned with fair use in training AI systems.
The USPTO consultation results have further been accompanied by a growing chorus of voices calling out the danger of taking claims of AI inventorship on faith. Daria Kim of the Max Planck Institute for Innovation and Competition, for example, provides an in-depth critical look at this topic in his article “AI-Generated Inventions’: Time to Get the Record Straight?“, concluding:
As long as a human specifies instructions that determine how the input-output relation is derived through computation, and as long as computers are bound by such instructions, there is seemingly no reason why AI-aided – allegedly ‘AI-generated’ – inventions should be treated under patent law differently than inventions assisted by other types of problem-solving tools and methods as far as inventorship is concerned. Instead, the use of such techniques should be a matter of the assessment of inventive step.
There are a number of ongoing consultations around the world on the topic of AI inventors and inventions, including a consultation by the UKIPO, which closes on 30 November 2020 (IPKat here). The hope is that results of these consultations will further help us to finally put the theoretical issue of AI inventorship to bed and allow the patent offices and national courts to concentrate on more practical issues.
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