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AI Patents: Laws Need to be Clear, Predictable, and Consistently Applied

By Dick Weisinger

The use of AI is spreading to almost every industry. A frequently recurring question now is who owns the rights to the inventions being created with AI? The results of a number of recent court cases in the US and elsewhere have found that AI itself is not able to hold a patent. In the US, patent law protection applies only to humans.

Then, is the person or the organization that built the AI that creates the invention the appropriate owner of the Intellectual Property? What about the user of the AI who devised the specific parameter inputs to the algorithm or the owners of the data used to train it?

Michael Carey, an AI-focused patent attorney, told Calvin Hennick for the Forecast by Nutanix, that “the AI patent world is still a little immature… There’s a bit of a challenge in enforcing AI patents because some of the key elements of AI patenting – the architecture, and the training – are actually a bit harder to observe for AI than even with other soft software tools. If you are coming from a traditional software background, you’re used to having a code that carries out a specific function. With AI patents, it’s not the same. You have millions of parameters, and they get learned by the algorithm, and it’s kind of a black box.”

The US Patent Act defines the patent inventor as an “individual or individuals collectively.” Chief Circuit Judge Kimberly Moore, the judge of a recent patent law case, asked “How can AI be an ‘individual?'”.

Dennis Barghaan, Assistant U.S. Attorney, as reported by Reuters, said that the U.S. Supreme Court has defined the term “individual” in federal statutes like the Patent Act to mean a ‘human being’.

Adam Mossoff, Professor of Law at George Mason University, as reported by The Register, said that “there haven’t been a lot of court cases on AI yet. There hasn’t been a significant commercial application of these technologies in a way that will precipitate what will be the next patent war in the sense that there was the sewing machine patent war, there was the patent war over fiber optics, and there was the patent war over disposable diapers and everything else. And when that happens, I think we’re going to see a real concern here.”

The Register points out a comment by the US Patent Office that despite a lot of current uncertainty that most parties believe that “the standard for determining whether an invention is patentable should be clear, predictable, and consistently applied.”

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