Check out this headline from lawandcrime.com:

Federal Appellate Court Rules AI Systems Cannot Be “Inventors” Because They Are Not Human.

Notice the angle: framing a battle between machines and homo sapiens, pitting human intelligence against artificial intelligence.

The article’s first sentence spotlights the center attraction, stating:

The U.S. Court of Appeals for the Federal Circuit ruled Friday [Aug. 5, 2022] that artificial intelligence or “AI” systems cannot patent their inventions because they are not “natural people.”

Here the Law and Crime article subtly inserts two key beliefs:

(1) that AI systems can in fact invent things all by themselves; and

(2) that AI systems physically can “patent their inventions.”

The sentence thus implies that the human-centric court unfairly blocked them.

What did the court rule – and what was the point of the litigation anyway?

DABUS: The Inventing Software with a Heart

Stephen Thaler, president of Imagination Engines, leads a crew of software programmers who developed a system called DABUS (Device for the Autonomous Bootstrapping of Unified Sentience). DABUS is described as a neural network system resulting from “over four decades” of research and development of “the concept of artificial neural networks engaged in chaos-driven brainstorming sessions to generate new concepts and action plans.” According to Imagination Engines, DABUS absorbs “general knowledge about the world” and “can conceive new ideas within a wide range of conceptual spaces.” And: DABUS employs “a new generative AI paradigm that develops subjective feelings for what it senses and imagines.”

U.S. Law Protects Patent Rights for Human Inventors

According to Thaler’s documents filed in the U.S. Patent and Trademark Office (PTO) and the courts, a DABUS system conceived of two inventions all by itself. Thaler filed patent applications to the PTO for both inventions. The PTO application form requires entering the name of the “inventor.” Thaler identified DABUS, “a collection of source code or programming and a software program,” as the sole inventor. The PTO denied the applications, holding “a machine does not qualify as an inventor.” The U.S. district court affirmed, holding: (1) an “inventor” under the U.S. Patent Act must be an “individual”; and (2) an “individual” is a natural person, i.e., a human being.

The Federal Circuit’s August 5, 2022, decision, Vidal v. Thaler, affirmed the district court, holding the plain meaning of “inventor” in the Patent Act denotes natural persons. The decision expressly declined to engage the debate over the creative power of AI systems compared and contrasted to humans. Rather, the decision stated: “The sole issue on appeal is whether an AI software system can be an ‘inventor’ under the Patent Act.” More specifically, the issue was whether “an artificial intelligence (AI) software system can be listed as the inventor on a patent application.”

Thaler had provoked the judicial system to address whether it was lawful to put the name of a software system in the “Inventor” entry on a patent application, thereby claiming the software achieved the entire invention. The Federal Circuit avoided the speculation about AI’s powers, remarking:

[I]t might seem that resolving this issue would involve an abstract inquiry into the nature of invention or the rights, if any, of AI systems. In fact, however, we do not need to ponder these metaphysical matters. Instead, our task begins – and ends – with consideration of the applicable definition in the relevant statute.

Indeed, the decision foreclosed Thaler’s attempt to gain government recognition of DABUS as a thinking, feeling inventor. Instead, the decision examined the meanings of words and phrases in the various statutes and relevant dictionaries, such as “individual,” “natural persons,” “whoever,” “his,” and “her.” The PTO, district court, and ultimately the Federal Circuit all understood Congress wrote the patent law statutes using words with common meanings – and none of the language suggested granting patent rights to machines or software.

Desperately Seeking Official Recognition

Evidently, the entire litigation was conceived to get the PTO to officially recognize that an AI system can invent things all by itself without human involvement. Thaler’s campaign to get governments to credit DABUS for novel inventions is worldwide. As listed on artificialinventor.com, Thaler has applied for patents crediting DABUS as AI inventor in Australia, Brazil, Canada, China, Europe, Germany, India, Israel, Japan, New Zealand, Republic of Korea, Saudi Arabia, Switzerland, Taiwan and the United Kingdom.

Thaler launched his litigation in the U.S. by filing the application naming DABUS as “Inventor.” The standard PTO form, AIA/14, calls for the inventor’s name and address. Instructions for the form indicate the “inventor” is “one who contributes to the conception of an invention.” By entering DABUS as “inventor,” Thaler asserted DABUS alone invented each item. Thaler baited PTO to implicitly declare that DABUS was “one who contributed to the conception of the invention.”

Moreover, by listing DABUS as the sole inventor, Thaler positioned PTO to effectively declare DABUS conceived of the invention all by itself without human involvement. The headline for the hoped-for coup practically writes itself: “U.S. Patent Office has recognized AI system as equivalent to human inventors.”

The Shovel Does Not Dig the Hole

The Federal Circuit decision pithily observed two salient points. First, it stated the court was “not confronted today with the question of whether inventions made by human beings with the assistance of AI are eligible for patent protection.” Indeed, Thaler and his colleagues designed and built DABUS, as any engineers would construct a power tool or robotic system. Just as the man, not his shovel, is credited for digging a hole, so likewise the products of machines are the results of the engineers’ work.

What DABUS invented came from the capabilities Thaler’s company conceived, developed, installed, debugged, and ultimately deployed to start DABUS receiving and processing data and then producing output information. DABUS therefore assisted Thaler, et al., to invent things. Thaler could have correctly listed his name alone on the AIA/14 form and perhaps received the patent for each invention. Nearly every inventor uses some tool in his or her work. Thaler was no different.

Secondly, the decision remarked:

While we do not decide whether an AI system can form beliefs, nothing in our record shows that one can, as reflected in the fact that Thaler submitted [to the PTO] the requisite statements himself, purportedly on DABUS’ behalf.

Right. DABUS was incapable of conceiving of applying for a patent, let alone taking the steps to prepare and file the paperwork. Why? Because DABUS could not do a task that its inventors did not prepare DABUS to do.

DABUS could not even prepare and sign a paper conveying its patent rights to Thaler. The PTO AIA/14 form requires the name and address of the owner of the patent rights (if granted). Thaler appointed himself the agent of DABUS, and then, on behalf of DABUS, conveyed all patent rights from DABUS to Thaler himself. All of the planning and execution of that legal maneuver was beyond DABUS to do.

The Campaign is Undaunted

Losing his case before the Federal Circuit likely assisted Thaler in his quest to elevate AI to equality or even superiority over humans. He can position himself as the progress-seeking future visionary battling the repressive American status quo. After all, the Australian and South African courts approved the patent application he filed for Dabus.

All this effort expended to demote humankind while exalting machines…

You may also wish to read: Google’s chatbot LaMDA sounds human because — read the manual… What would you expect LaMDA to sound like? Whales? ET? I propose a test: “Human until PROVEN otherwise.” It’s impressive but, studying the documentation, I think I know what happened to Blake Lemoine. He was hired to chat with LaMDA and didn’t understand… (Eric Holloway)