AIs are increasingly being used to make new discoveries but, under most patent laws, a human must be listed as the patent holder for inventions.

Dr Stephen Thaler created a device called DABUS that consists of neural networks and has been used to invent an emergency warning light, a food container that improves grip and heat transfer, and more.

Thaler believes that AIs should be patent holders and has launched numerous cases in at least 15 countries to argue the case.

So far, the cases in the UK, US, and New Zealand have all been rejected.

In August 2021, an Australian federal court ruled that AI systems can be credited as inventors. However, in April 2022 that decision was reversed.

Ryan Abbott, a professor at the University of Surrey, filed the applications in Australia on behalf of Dr Thaler.

“If I teach my PhD student and they go on to make a final complex idea, that doesn’t make me an inventor on their patent, so it shouldn’t with a machine,” Abbott told the Wall Street Journal in 2019.

In the US, the case was submitted by the Artificial Inventor Project (AIP) which argued that Thaler has no experience in consumer goods and would not have created them himself. Once again, it was rejected.

“This is a case in which the question of statutory interpretation begins and ends with the plain meaning of the text … [T]here is no ambiguity: the Patent Act requires that inventors must be natural persons; that is, human beings,” wrote Judge Leonard P. Stark in the court’s ruling.

At the time, Thaler and Abbott said they’d continue appealing the decisions.

“It ignores the purpose of the Patent Act and the outcome that AI-generated inventions are now unpatentable in the United States,” Abbott told Bloomberg Law.

“That is an outcome with real negative social consequences.”

While the appeal rejections haven’t deterred Thaler or Abbott, most courts appear set on maintaining the principle that humans can only be listed as inventors.

The primary argument of the courts is that no AI is creating a new invention by itself, it’s a tool that’s ultimately acting on the instruction of a human. Until we achieve general artificial intelligence, it’s a position that’s hard to dispute.

Of the latest rejection, Thaler is requesting a rehearing at the Federal Circuit level.

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Politico reports that Clearview AI has been sent a “notice of allowance” by the US Patent and Trademark Office. The notice means that it will be granted the patent once it pays the administration fees.

Clearview AI offers one of the most powerful facial recognition systems in the world. In the wake of the US Capitol raid, Clearview AI boasted that police use of its facial recognition system increased 26 percent.

The controversy around Clearview AI is that – aside from some potential far-right links – its system uses over 10 billion photos scraped from online web profiles without the explicit consent of the individuals.

“Common law has never recognised a right to privacy for your face,” Clearview AI lawyer Tor Ekeland once argued. Ekeland, it’s worth noting, gained notoriety as “The Troll’s Lawyer” after defending clients including self-described neo-Nazi troll Andrew Auernheimer.

‘Unreasonably intrusive and unfair’

Last month, the UK’s Information Commissioner’s Office (ICO) imposed a potential fine of just over £17 million to Clearview AI and ordered the company to destroy the personal data it holds on British citizens and cease further processing.

Leaked documents suggest Clearview AI’s system was tested by UK authorities including the Metropolitan Police, Ministry of Defense, the National Crime Agency, and a number of police constabularies including Surrey, North Yorkshire, Suffolk, and Northamptonshire. However, the system is said to no longer be being used or tested in the UK.

“UK data protection legislation does not stop the effective use of technology to fight crime, but to enjoy public trust and confidence in their products technology providers must ensure people’s legal protections are respected and complied with,” commented UK Information Commissioner Elizabeth Denham.

The UK’s decision was the result of a joint probe launched with the Office of the Australian Information Commissioner (OAIC) into Cleaview AI’s practices.

Earlier in the month, the OAIC reached the same conclusion as the ICO and ordered Clearview AI to to destroy the biometric data that it collected on Australians and cease further collection.

“I consider that the act of uploading an image to a social media site does not unambiguously indicate agreement to collection of that image by an unknown third party for commercial purposes,” said Australia’s Information Commissioner Angelene Falk.

“The covert collection of this kind of sensitive information is unreasonably intrusive and unfair,” Falk said. “It carries significant risk of harm to individuals, including vulnerable groups such as children and victims of crime, whose images can be searched on Clearview AI’s database.”

The first patent ‘around the use of large-scale internet data’

Major web companies like Facebook, Twitter, Google, YouTube, LinkedIn, and Venmo sent cease-and-desist letters to Clearview AI demanding the company stops scraping photos and data from their platforms.

Clearview AI founder Hoan Ton-That is unabashedly proud of the mass data-scraping system that his company has built and believes that it’s key to fighting criminal activities such as human trafficking. The company even says its application could be useful for finding out more about a person they’ve just met, such as through dating or business.

“There are other facial recognition patents out there — that are methods of doing it — but this is the first one around the use of large-scale internet data,” Ton-That told Politico in an interview.

Rights groups have criticised the seemingly imminent decision to grant Clearview AI a patent as essentially patenting a violation of human rights law.

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AIs are increasingly being used to come up with new ideas and there’s an argument they should therefore be listed as the inventor by patent agencies. However, opponents say that patents are a statutory right and can only be granted to a person.

US-based Dr Stephen Thaler, the founder of Imagination Engines, has been leading the fight to give credit to machines for their creations.

Dr Thaler’s AI device, DABUS, consists of neural networks and was used to invent an emergency warning light, a food container that improves grip and heat transfer, and more.

In August, a federal court in Australia ruled that AI systems can be credited as inventors under patent law after Ryan Abbott, a professor at the University of Surrey, filed applications in the country on behalf of Dr Thaler. Similar applications were also filed in the UK, US, and New Zealand.

In the UK, the Intellectual Property Office rejected the applications on the grounds that – under the country’s Patents Act – only mere mortals can be recognised as inventors. The decision was appealed in the High Court in London and failed once again.

Undeterred, the case was taken to the Court of Appeal back in July this year. Thaler argued that he truly believed DABUS was the inventor which should be enough to satisfy section 13(2)(a) of the aforementioned Patent Act.

Lord Justice Birss entertained the idea and stated that “Dr Thaler has complied with his legal obligations under s13(2)(a)”.

“The fact that no inventor, properly so-called, can be identified, simply means that there is no name which the Comptroller has to mention on the patent as the inventor,” Lord Justice Birss went on to say.

However, Lord Justice Birss’ colleagues – Lord Justice Arnold and Lady Justice Elisabeth Laing – ultimately disagreed and dismissed the appeal. Their reasoning goes back to the view that only humans can be credited as inventors.

“Dr Thaler did not identify ‘the person or persons whom he believes to be the inventor or inventors’ as required,” said Lord Justice Arnold.

“A patent is a statutory right and it can only be granted to a person,” added Lady Justice Liang. “Only a person can have rights. A machine cannot.”

The fight to give machines rights will have to continue another day.

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Ryan Abbott, a professor at University of Surrey, has launched over a dozen patent applications around the world – including in the UK, US, New Zealand, and Australia – on behalf of US-based Dr Stephen Thaler.

The twist here is that it’s not Thaler which Abbott is attempting to credit as an inventor, but rather his AI device known as DABUS.

“In my view, an inventor as recognised under the act can be an artificial intelligence system or device,” said justice Jonathan Beach, overturning Australia’s original verdict. “We are both created and create. Why cannot our own creations also create?”

DABUS consists of neural networks and was used to invent an emergency warning light, a food container that improves grip and heat transfer, and more.

Until now, all of the patent applications were rejected—including in Australia. Each country determined that a human must be the credited inventor.

Whether AIs should be afforded certain “rights” similar to humans is a key debate, and one that is increasingly in need of answers. This patent case could be the first step towards establishing when machines – with increasing forms of sentience – should be treated like humans.

DABUS was awarded its first patent for “a food container based on fractal geometry,” by South Africa’s Companies and Intellectual Property Commission on June 24.

Following the patent award, Professor Adrian Hilton, Director of the Institute for People-Centred AI at the University of Surrey, commented:

“This is a truly historic case that recognises the need to change how we attribute invention. We are moving from an age in which invention was the preserve of people to an era where machines are capable of realising the inventive step, unleashing the potential of AI-generated inventions for the benefit of society.

The School of Law at the University of Surrey has taken a leading role in asking important philosophical questions such as whether innovation can only be a human phenomenon, and what happens legally when AI behaves like a person.”

AI News reached out to the patent experts at ACT | The App Association, which represents more than 5,000 app makers and connected device companies around the world, for their perspective.

Brian Scarpelli, Senior Global Policy Counsel at ACT | The App Association, commented:

“The App Association, in alignment with the plain language of patent laws across key jurisdictions (including Australia’s 1990 Patents Act), is opposed to the proposal that a patent may be granted for an invention devised by a machine, rather than by a natural person.

Today’s patent laws can, for certain kinds of AI inventions, appropriately support inventorship. Patent offices can use the existing requirements for software patentability as a starting point to identify necessary elements of patentable AI inventions and applications – for example for AI technology that is used to improve machine capability, where it can be delineated, declared, and evaluated in a way equivalent to software inventions.

But more generally, determinations regarding when and by whom inventorship and authorship, autonomously created by AI, could represent a drastic shift in law and policy. This would have direct implications on policy questions raised about allowing patents on inventions made by machines further public policy goals, and even reaching into broader definitions of AI personhood.

Continued study, both by national/regional patent offices and multilateral fora like the World Intellectual Property Office, is going to be critical and needs to continue to inform a comprehensive debate by policymakers.”

Feel free to let us know in the comments whether you believe AI systems should have similar legal protections and obligations to humans.

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Some masochists enjoy the pain of being repeatedly beaten in games like Dark Souls – it’s understandable, overcoming those challenges is a great feeling – but most of us have a breaking point where the power button gets hit and the game just ends up collecting dust on a shelf.

A patent spotted by SegmentNext details an AI which learns from the human player and can continue when they’re not playing:

“The method includes monitoring a plurality of game plays of the user playing a plurality of gaming applications,” the patent explains.

“The method includes generating a user gameplay profile of the user by adjusting the default gameplay style based on the plurality of game plays, wherein the user gameplay profile includes a user gameplay style customized to the user. The method includes controlling an instance of a first gaming application based on the user gameplay style of the user gameplay profile.”

It’s easy to see how such an AI could be used in grind-heavy games to reach a required level, or another player’s AI that has completed a particular challenge could even be used to overcome it rather than lead to a situation where they give up completely.

For those who feel that level of intervention is cheating, the AI could instead offer tips to the human player as they’re gaming. The AI basically wants to be a helpful player two rather than the person on your couch that mocks you and then does worse when they take the controller.

While great strides have been made in making games accessible for people with disabilities, there are some parts of games which remain problematic even with the best intentions of developers. These individuals will also benefit from an AI which can take the reins for a bit and allow them to continue enjoying the rest of the game and the increasingly immersive storytelling many provide.

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AI will assist us mere humans in coming up with new innovations in the years to come. However, the USPTO will not let them take the credit.

The USPTO has rejected two early filings of inventions credited to an AI system called DABUS which was created by Stephen Thaler.

DABUS invented two devices; a shape-shifting food container, and a new type of emergency flashlight.

The filings were submitted by the Artificial Inventor Project (AIP) last year. AIP’s lawyers argued that Thaler is an expert in building AI systems like DABUS but has no experience in consumer goods and would not have created them himself.

The USPTO concluded that “only natural persons may be named as an inventor in a patent application,” under the current law.

Similar applications by the AIP in the UK and EU were rejected along the same lines by their respective patent authorities.

“If I teach my Ph.D. student and they go on to make a final complex idea, that doesn’t make me an inventor on their patent, so it shouldn’t with a machine,” Ryan Abbott, a professor at the University of Surrey who led a group of legal experts in the AI patent project, told the Wall Street Journal last year.

The case over whether only humans should hold such rights has similarities to the infamous monkey selfie saga where PETA argued that a monkey could own the copyright to a selfie.

The US Copyright Office also ruled in that instance that only photographs taken by humans can be copyrighted and PETA’s case was subsequently dismissed.

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Current digital assistants listen for a wakeword such as “Ok, Google” or “Alexa,” before recording speech for processing. Especially for companies such as Google and Amazon which thrive on knowing everything about users, this helps to quell privacy concerns.

There are some drawbacks from this approach, mainly context. Future AI assistants will be able to provide more help when armed with information leading up to the request.

For example, say you were discussing booking a seat at your favourite restaurant next Tuesday. After asking, “Alexa, do I have anything on my schedule next Tuesday?” it could respond: “No, would you like me to book a seat at the restaurant you were discussing and add it to your calendar?”

Today, such a task would require three separate requests.

Amazon’s patent isn’t quite as complex just yet. The example provided in the filing envisions allowing the user to say things such as “Play ‘And Your Bird Can Sing’ Alexa, by the Beatles,” (Note the wakeword after the play song command.)

David Emm, Principal Security Researcher at Kaspersky Lab, said:

“Many Amazon Alexa users will likely be alarmed by today’s news that the company’s latest patent would allow the devices – commonplace in homes across the UK – to record everything a person says before even being given a command. Whilst the patent doesn’t suggest it will be installed in future Alexa-enabled devices, this still signals an alarming development in the further surrender of our personal privacy.

Given the amount of sensitive information exchanged in the comfort of people’s homes, Amazon would be able to access a huge volume of personal information – information that would be of great value to cybercriminals and threat actors. If the data isn’t secured effectively, a successful breach of Amazon’s systems could have a severe knock-on effect on the data security and privacy of huge numbers of people.

If this patent comes into effect, consumers need to be made very aware of the ramifications of this – and to be fully briefed on what data is being collected, how it is being used, and how they can opt out of this collection. Amazon may argue that analysing stored data will make their devices smarter for Alexa owners – but in today’s digital era, such information could be used nefariously, even by trusted parties. For instance, as we saw with Cambridge Analytica, public sector bodies could target election campaigns at those discussing politics.

There’s a world of difference between temporary local storage of sentences, to determine if the command word has been used, and bulk retention of data for long periods, or permanently – even if the listening process is legitimate and consumers have opted in. There have already been criticisms of Amazon for not making it clear what is being recorded and stored – and we are concerned that this latest development shows the company moving in the wrong direction – away from data visibility, privacy, and consent.”

There’s a joke about Uber that society used to tell you not to get into cars with strangers, and now you’re encouraged to order one from your phone. Lyft has been able to ride in Uber’s wake relatively negative PR free.

Getting the balance right between innovation and safety can be a difficult task. Pioneers often do things first and face the backlash before it actually becomes somewhat normal. That’s not advocating Amazon’s possible approach, but we’ve got to be careful outrage doesn’t halt progress while remaining vigilant of actual dangers.

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