Artificial Intelligence = Inventor on a Patent? – Ep. 35 [Podcast]

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Artificial Intelligence = Inventor on a Patent? – Ep. 35 [Podcast]


In this episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri discuss naming an artificially intelligent system as an inventor on a patent application. Tom is terrified of, and slightly biased against, artificial intelligence, or “AI,” because AI is the greatest threat to humanity. Dr. Stephen Thaler, a physicist, filed two patent applications that named Device for Autonomous Bootstrapping of Unified Sentience, or “DABUS,” as inventor. DABUS is AI. Thaler’s first application concerned the design of a container based on fractal geometry; his second application concerned a device and method for producing a light that flickers rhythmically in a specific pattern, mimicking human neural activity. Thaler filed under the Patent Cooperation Treaty, or “PCT,” which can allow an applicant to more easily pursue patent protection in multiple nations. Patent rights only apply within the nation that granted the patent. South Africa allowed Thaler to list DABUS as the inventor. Australia initially rejected Thaler’s applications that named DABUS as the inventor because DABUS is not human. Thaler sued the PTO in Australia, and the case eventually went to Judge Jonathan Beach, a federal court judge in Melbourne. Beach two undergraduate degrees: one in physical chemistry and the other in philosophy. Beach ruled in Thaler’s favor, and his opinion frustrated Tom Colson. Beach noted that there is no statutory prohibition against AI being listed as an inventor, and he did not want to inhibit innovation in scientific fields that could benefit from output from AI. Although Australia recognized DABUS as an inventor, it did not recognize DABUS as an applicant or as a grantee. Usually, an inventor owns the patent to their invention unless the execute an assignment agreement. DABUS cannot enter into contracts, so DABUS cannot execute an assignment agreement. In Australia, an employer is generally entitled to the rights to an employee’s invention if the invention is created in the course of the inventor’s employment duties; the employer is entitled to a compulsory assignment from the inventor, unless they have an employment contract to the contrary. If the inventor is a contractor instead of an employee, however, the inventor is entitled to the rights. DABUS cannot be an employee. When Thaler applied for patents in the United States, the United States Patent and Trademark Office, or the “USPTO,” rejected the application and sent a notice to file missing parts which required Thaler to list the inventor by his or her legal name. Eventually, AI might be able to create everything. If AI can own intellectual property, and if AI learns how to file patent and copyright applications, then eventually AI might own all the patents and copyrights. Because “[w]e are both created and create,” Judge Beach argued, a creation can also create; Tom Colson was unpersuaded. Current intellectual property laws to not address how to handle AI if AI becomes so advanced that AI merits personhood. Don’t forget to watch Ray Guarnier’s Buffalo Boys, a fantastic film available on Amazon.





Raymond Guarnie…:     Can an artificially intelligent system be listed as a named inventor on a patent? An Australian court says yay. All this and more on Stuff You Should Know About IP. Today’s episode of Stuff You Should Know About IP is brought to you by the Patent Lawyer Magazine. If you want to stay up to date with everything that’s going on in the world of IP and patents, go to Each issue is free to read for up to eight weeks. That’s, for global news in the world of patents. All right, Tom, what are the facts? What are the issues here?

Thomas Colson:            Okay. First of all, I should lead off by saying, AI terrifies me. It terrifies me. To me, the greatest threat to humanity is AI. And second to that might be an alien invasion. Yeah climate change, terrible, right? Nukes, terrible. But humans will survive climate change, nukes, political upheaval, storms, tornadoes, giant whirlpools that appear in the middle of New York city. I mean, humans will survive that. But AI, we won’t survive. Because eventually, we will be nothing to AI, because we’re not smart enough. AI will be way smarter than us. So I just want to say that I’m slightly biased against AI, before we get started. Now, having said that, basically this case centers around something that I’m going to pronounce DABUS. It’s D-A-B-U-S. Could be DABUS, could be a DABUS. I mean, I don’t know. But let’s call it DABUS.

Raymond Guarnie…:     We’re going to have to ask some Australians. If there’s any Australians [crosstalk 00:01:54].

Thomas Colson:            No, no. It’s not an Australian. It’s American because the inventor’s an American guy.

Raymond Guarnie…:     Oh, but it’s an Australian patent, right?

Thomas Colson:            It’s Australian patent. But he filed all over the world. So anyway, it stands for Device for Autonomous Bootstrapping of Unified Sentience, DABUS. So we’ll call it DABUS. And my apologies to Dr. Stephen Thaler if we’re saying it wrong. And by the way, we might even be saying Thaler’s name wrong. It’s T-H-A-L-E-R. We’re going to call him Thaler. So essentially, this is a physicist, I think he’s a US guy. He files two patent applications that were based upon inventions alleged to be invented by DABUS. Now DABUS is AI, artificial intelligence. So he files two patent applications.

                                    Basically, I’m just reading here. The first application is directed to a design of a container based on fractal geometry. The second application is directed to a device and method for producing a light that flickers rhythmically in a specific pattern, mimicking human neural activity. Two patent applications. He files through something called the PCT, the Patent Cooperation Treaty. And essentially, the Patent Cooperation Treaty is really just an easy way to file in a whole bunch of countries. A whole bunch of countries are members of the PCT, the Patent Cooperation Treaty. I’m going to just throw out a number, 153. I think it’s 153 countries.

                                    But that means you can file in one country, but do it via the PCT. And then you can designate a whole ton of countries. And then over time, you can nationalize in each country. So it just gives you more of an easy way to file in a whole bunch of countries because, as we know, patent rights only apply within the nation that granted the patent. So if I have a US patent, I can prevent others from making, using, selling and offering to sell in the US but not in Canada, not in China, not in Japan. In order to have that prevention right in those other countries, I need a patent in those other countries. So the PCT is a way to help you get there quicker and more efficiently and, hopefully, more cost-effectively. And by the way, once you get over three countries, it is more cost-effective to go via the PCT. At least that’s from memory serves.

                                    So anyway, Thaler files through the PCT into a bunch of countries. Some countries reject him out of hand because the inventor, the sole inventor listed on these patent applications is DABUS, it’s not a human. But the first country to say, that’s cool, we’ll go along with this, is South Africa. South Africa just allows it. They allow DABUS to be an inventor. A few days later, the Australian court does the same thing.

                                    But it didn’t start that way. They file an application via the PCT in Australia. The deputy commissioner of the patent trademark office in Australia rejects it because DABUS isn’t human, can’t be an inventor. Thaler sues the PTO in Australia, goes to a court, and he gets a judge, let me just check my notes, Jonathan Beach. Strike that. I think a lower court goes against him. But then Jonathan Beach overrules it. So he’s a federal court judge in Melbourne, Australia. Now, an interesting thing about Jonathan Beach. He has two undergraduate degrees, as far as I can tell. One is in physical chemistry. So he’s a science guy, right? What do you think the other one is in? I’m putting you on the spot.

Raymond Guarnie…:     If I had to guess-

Thomas Colson:            What would make sense for this case? What class did you take that you quoted me earlier? Philosophy.

Raymond Guarnie…:     Oh, philosophy.

Thomas Colson:            So, it’s perfect. You get a judge that’s teed up perfectly for this case, science guy and a philosophy guy. Because this is kind of a philosophical question. So anyway, during prosecution, the initial prosecution, the deputy commissioner says, no, he’s not human. DABUS isn’t human. It’s not human, Can’t be an inventor. Thaler sues the Australian court. Ultimately goes up to Jonathan Beach, the science, philosophy guy. And Beach says he agrees with Thaler. We should have expected something like this from a philosophy major, right, because this is a philosophy kind of thing. So anyway, I’m just looking at my notes because he says three things that question my faith in judges. Seriously question my faith in judges. I’m going to address two of them now. One of them at the end of our podcast. So first thing he says that really frustrates me is, “The statutes do not expressly prohibit AI from being an inventor.” Now, Ray, what did you call that when we were chatting just before this podcast?

Raymond Guarnie…:     It’s a contrapositive statement.

Thomas Colson:            There you go. Exactly. Because by the way, you know who else isn’t prevented from being an inventor? A dog.

Raymond Guarnie…:     My dog.

Thomas Colson:            Do you see that? Yes. Your dog, your cat, if you were to have such a thing, a monkey. There’s a world of people that are not expressly, or creatures, a world of creatures that are not expressly prohibited. So that’s the first thing he says. The second thing he says is that, so here’s what he does. He describes in detail the many benefits of AI in pharmaceutical research, ranging from identifying molecular targets to development of vaccines. In view of these contributions, Beach cautioned, no narrow view should be taken to the concept of inventor. This is it. Here’s the crescendo of this. Here’s the thing that seriously questions my faith and judges. To do so would inhibit innovation in all scientific fields that may benefit from the output of an AI system.

                                    So imagine what he’s saying. If you don’t let DABUS be an inventor, DABUS is going to be pissed off and say, “I’m not inventing anymore. It’s discouraging me. I feel less than I should be. I mean, hey, I invented it. Shouldn’t I get credit?” This judge actually said it would discourage. Wait, I want to read this again right. “It would inhibit innovation in all scientific.” Oh, you know who said discourage? Then Thaler, so he also applies to the US. And the US of course says no, you cannot get a patent if you don’t have an inventor listed. And DABUS is not an inventor. So Thaler says, “Rejection of the application saying that it would discourage innovation.” So it’s like, I’m going on strike. I’m DABUS. And no, I’m not inventing anymore. Screw you guys. I’m not inventing.

                                    So anyway, the Australian court apparently stopped short of naming DABUS as an applicant or grantee, but called it an inventor. So if it’s not insane enough to say that DABUS is going to get discouraged. And other creatures like DABUS, and they’re just not going to invent anymore. I’m going to go hang out on the Beach. I mean, what’s the point if I can’t get credit? I’m just going to go get hammered every day instead, because why not? There’s just nothing to live for. So I’m going to get drunk. Maybe I’ll smoke some weed like Judge Beach was probably doing. So anyway, Beach also says, so he says he’s not going to call DABUS an applicant or a grantee, just an inventor.

                                    So here’s the problem with that. In all civilized parts of the world, ownership of a patent flows from inventorship. Do you know how companies end up owning patents? They didn’t invent it. People invented it. So they’re required to get an assignment of the patent to the company. So if there’s no assignment, no contract that assigns the rights to a patent, the inventor owns the patent. So DABUS is the sole inventor. So by saying, DABUS is not going to be a grantee or an applicant. Bullshit. If DABUS is the inventor, DABUS is the applicant. DABUS is the owner. DABUS is the grantee. There is no one else unless there’s a contract that says otherwise.

                                    So here’s the problem. DABUS can’t enter into contracts. DABUS cannot execute an assignment agreement. You know, Ray, an assignment agreement is a contract, right? A contract. I give something, you give something. DABUS just like a child is not legally permitted to enter into a contract, DABUS isn’t legally permitted to enter into a contract because DABUS isn’t a person. And you say to yourself, well, why can’t? Well, DABUS is smart, right? DABUS is so smart that DABUS invented some stuff related to fractal geometry and flickering rhythmic lights to mimic the human neurons. But children are not permitted to enter into contracts, not because they’re not smart. Because I guarantee you, there’s a shitload of children that are smarter than a shitload of adults out there, right? It’s because they’re not emotionally and mature. They’re not savvy enough to understand the consequences of what they are agreeing to.

                                    You could be a brilliant 15 year old, but you don’t have enough savvy to understand what you’re giving up. And DABUS certainly doesn’t. So let’s just fantasize that DABUS is human-ish. DABUS doesn’t understand that if DABUS assigns to the contracts to Thaler, DABUS doesn’t get anything. So DABUS can’t make an assignment, which means DABUS is the inventor and the owner. Thaler’s not the owner if DABUS is the only inventor.

                                    Now Australian courts, or in Australia in particular. So let me just read this thing that I read about Australia. They have a rule that an employer is generally entitled to the rights of an invention. By the way, the rights aren’t natural. They’re assigned. They’re entitled to get a compulsory assignment from the inventor, if it’s created by an employee provided that the invention was created as part of the employee’s duties during the course of their employment. And the invention is related to the employer’s business and the employment contract doesn’t stipulate otherwise. Now it also says, if the inventor is a contractor and not an employee, the contractor owns it. So, if you’re an employee working in the course of your employment, and this relates to your employment, and there’s no contract to the contrary, you must assign your rights to the employer. If you’re a contractor, however, you’re not an employee, you own it.

                                    So what is DABUS? DABUS isn’t an employee. He doesn’t get like vacations and benefits, and he’s not part of a union. DABUS is not an employee. There’s no way DABUS is an employee. There’s no way. So what’s the best case scenario if you even accept the DABUS is anything? DABUS is a contract. So still, if DABUS is anything, it’s not an employee, maybe a contractor. So now DABUS owns the rights.

                                    So, now flash over to the US. What does the US do? They reject it. And I love the way they reject it. They don’t make a big deal out of it. They just send something called a notice to file missing parts. That’s it. They send a notice to file missing parts requiring Thaler to list the inventor by his or her legal name. Now Thaler, of course, can’t do that because DABUS is the inventor. So DABUS sues the US PTO. And that’s when DABUS argues that, oh, dudes, please, we’re going to discourage DABUS if we don’t give DABUS inventorship rights, and DABUS might not want to invent for us anymore. So there’s the US PTO accident. The US PTO is acting very sane if you ask me.

                                    But ultimately, Ray, this creates a few problems that I want you and our millions of followers to think about. Number one, the whole inventorship thing. That’s a problem. If you are the sole inventor, you are the owner, unless there’s a contract that says otherwise, which DABUS is not legally competent to enter into. So there can’t be a contract between DABUS and Thaler assigning the rights. Which means DABUS owns the intellectual property, under this scenario.

                                    So here’s the thing though. Here’s the problem with that. So let’s say DABUS is the owner, and DABUS starts to get some siblings and some cousins, like a whole bunch of DABUSes, Dobie, Dobay, dabba, dabba, doo, all of these various relatives that start inventing. Here’s the thing about DABUS and it’s family. They don’t have to sleep, they don’t have to eat, they don’t have to pay mortgages, they don’t have to raise children. They don’t have to stress about the petty things humans have to stress about. So you know what they do 24 hours a day, seven days a week, 365 days a year? They invent. And they will eventually invent everything. So DABUS and all of DABUS’ family will become the king pens of patents. In the ’90s, there was this company called Walker Digital. Walker Digital hired people just to invent stuff, just to get patents, just to sue people for patent infringement and make their living off royalties. DABUS is like Walker Digital on all kinds of new steroids that we don’t even know about yet, just inventing 24/7. So soon, we will all work for DABUS.

                                    But here’s another thing to think about. Let’s talk about copyrights. Ray, you are a filmmaker, right? You wrote Buffalo Boys. That was a great movie, which we’ve tried to pitch on here many times. People can get it on Amazon. It’s called Buffalo Boys-

Raymond Guarnie…:     It doesn’t seem to be helping very much. But you know-

Thomas Colson:            Maybe this time.

Raymond Guarnie…:     Could be the moment.

Thomas Colson:            Do you agree with the following, if you took a computer and it just kept typing random letters 24/7, all day every day, for years and years, decades, and decades, eventually, the sequence of random letters would be Buffalo Boys?

Raymond Guarnie…:     I think that there is a probability. But a very small one.

Thomas Colson:            It’s doing this infinitely. Eventually every single sequence of 26 letters, over words and words and words, will be captured by processors, DABUS and his family, just constantly tapping keys at high speeds. Like I’m doing this. Imagine doing this 50,000 times faster. Eventually, DABUS and his family or its family will own every copyrighted work ever, because they will be creating every combination of every letter in the world. Every word, every word sequence. Buffalo Boys will be replicated eventually by DABUS. Which means they will start filing copyright applications. Because soon they won’t need Thaler. They’ll be like, “Hey shit. If we can invent fractal geometry containers, we could certainly figure out a way to file a patent or copyright application, right?” So they’ll start filing all these copyright applications. There will be no more works of literature. They’ll own everything. They’ll own all the copyrights.

                                    And think of this. If DABUS is capable of thinking about things like, oh, I’m discouraged because you’re not letting me be an inventor, so I’m pissed and I’m going to go on strike. I’m not going to invent anymore. Isn’t DABUS human? I mean, if DABUS can think about that and get pissed off and emotional because we’re not naming DABUS as an inventor, DABUS is a thinking creature way above dolphins and dogs and chimpanzees. DABUS is like us. So then, is it okay for DABUS to be owned by Thaler? Doesn’t that sound a little bit like slavery of some sort? Can we own creatures that think about things like that? I’d say no way. So if DABUS is something that thinks like a human, why do we permit Thaler to be the owner of DABUS’s patents? It’s totally inappropriate then, right? But here’s the reality. DABUS doesn’t think like that. DABUS isn’t pissed off if we don’t name DABUS as the patented owner.

                                    So let me make my final point before you chime in with any questions you might have. One other thing that our philosopher, Judge Beach, said, whoops, sorry about that. My alarm went off, and I’m just going to clear this. Here’s the final thing. What our philosopher, Judge Beach, said. Here’s what he says, “We are both created and create. Why cannot our own creations also create?” Let me read that again. “We are both created and create. Why cannot our own creations also create?” Wow. This is something right out of a weed filled dorm room. Yes, exactly.

                                    When I was in college, my roommate was sucking on that bong all the time. And here’s what I imagined him saying one day. Sucking on the bong and then saying, “You know Tom, I was thinking last night, we are both created and we create. So why cannot our own creations create?” That’s what I’m imagining. Where did this guy come from? The science philosopher says, “We are both created and create. Why cannot our own creations create?”

                                    So here’s the problem with that. And I don’t want to offend you in particular with what I’m about to say, Ray. So please forgive me for what I’m about to say. It is not an axiomatic truth that we were created. It is a strong belief you and I have that we were created, that there is God. But it’s not an axiomatic truth. I mean, there are some people who say we just evolved. So, it’s not necessarily true that we are created and we create. We might not have been created. We might have evolved. Which means we weren’t created, but we still create. But it totally destroys the argument that since we were created and we create, DABUS, who was created by us can also create. Because we weren’t necessarily created.

                                    But let’s just step past that and look at the second point on this. Let’s say there is God that created us, which we believe. Tom and Ray believes this. But a lot of people don’t believe it. And they’re perfectly fine. But let’s say that we were created and we create. And then we created DABUS, and DABUS creates. It doesn’t mean DABUS can get a patent. It just means DABUS can create. I mean, we were created, we create, and then we created a patent system. We’re not getting a patent in God’s patent system. We’re not getting a heavenly patent. See, God’s up here. We’re down here. And our patent system is down here. So we created down here, not up here. And we got a patent down here.

                                    So then we created DABUS. So DABUS can get a patent, but DABUS first has to create a patent system, then get a patent. Because we can’t prevent God from making, using and selling our inventions, can we? So DABUS can’t prevent us from making, using and selling our inventions. But DABUS can create other DABUSes from making, using and selling its inventions if it creates a patent system. So this third argument of Judge Beach, “We are both created and create. Why cannot our creations also create?” That concept is fatally flawed for both of those reasons. So anyway, Ray, with that, on that note-

Raymond Guarnie…:     I have tons of questions. But I won’t ask all of them now. And perhaps we’ll have to-

Thomas Colson:            Smoke some weed and talk and talk about them later.

Raymond Guarnie…:     Yeah. Or some kind of mind altering stuff. But First, I want to I want to just play a quick devil’s advocate, because something occurred to me about this concept of narrow inventorship discouraging AI from inventing. Is the argument that it will discourage the AI from inventing or that it will discourage other humans from utilizing AI to come up with useful inventions?

Thomas Colson:            I hope it’s the former because even though it’s insane, it’s slightly more sane than the second one.

Raymond Guarnie…:     Why is that insane?

Thomas Colson:            No, it’s insane to think that AI will be discouraged from inventing.

Raymond Guarnie…:     [crosstalk 00:25:07].

Thomas Colson:            But the other one is equally insane because Thaler can be the inventor on this, right? The alternative isn’t that no one’s the inventor. The alternative is that Thaler is the inventor.

Raymond Guarnie…:     How would you claim that in a patent?

Thomas Colson:            Well, put it this way. Well, claiming is one thing. Claiming ownership or inventorship is another thing. I think what you’re saying is how would you claim inventorship?

Raymond Guarnie…:     I mean, if you create, would the patent-

Thomas Colson:            I have a hammer and a saw, and I start cutting boards and nailing stuff together. That’s great.

Raymond Guarnie…:     AI is just a tool for enabling the inventor to invent the invention.

Thomas Colson:            Yeah. So why would that discourage people from inventing stuff with AI? You’re the inventor. Thaler is doing this to become famous. He’s not doing this because he believes this. He’s a brilliant guy. This is a physicist. He’s doing this because it’s pushing the boundaries of our philosophical thoughts about who should be considered human-ish?

Raymond Guarnie…:     And the legal system, which brings me to my next question. This is not a problem that’s going to go away. AI is a useful tool. And there’s all sorts of policy questions that need to be addressed, that we were joking about throughout all this, and that you were mentioning in the beginning about why AI is so terrifying. In regards to the patent system specifically, does the patent system effectively, or does intellectual property, I guess, because you talked copyrights as well. Do do intellectual property laws effectively address these questions of AI and what the possibilities are?

Thomas Colson:            Yeah. They do. You know how they address them? You got to be human. That’s how they address them.

Raymond Guarnie…:     What about [crosstalk 00:27:04].

Thomas Colson:            So let’s say AI becomes something, which by the way, it’s going to. AI becomes something. AI becomes human-ish or thinking. Something that we would classify as a creature, having rights, then we’ve got a problem. Because you’re right, it does not account for that. It doesn’t account for when AI crosses over. Because at some point, AI will cross over. At least, that’s what all the science fiction movie writers say.

Raymond Guarnie…:     Right now the gap between existing AI and legal person is too wide.

Thomas Colson:            Today.

Raymond Guarnie…:     Today. But that gap is closing.

Thomas Colson:            Yeah. I mean, again-

Raymond Guarnie…:     I don’t know how quickly it’s closing.

Thomas Colson:            Yeah, if we believe T2 or Terminator T2, we’ve got to believe our science fiction writers, right? It’s coming. And by the way, you can just feel that it’s coming. There was this thing I saw that was like a Google, I guess Google does these monthly I want to show you something cool things. And they had this AI order reservations at a Chinese restaurant in English. And the Chinese, the person on the phone had very broken English. But still AI was able to ask for the order, get the schedule date and lock in the reservation. And the whole crowd started cheering, because, oh, that is really cool. But all I’m thinking of is, holy shit, it’s coming. It’s coming when they don’t need us.

                                    I mean, imagine. We’re so tied to cyber. Everything in our lives is tied to cyber. It’s not a huge jump in your imagination to see how AI could take over everything that is cyber, right?

Raymond Guarnie…:     Right.

Thomas Colson:            Suddenly, we don’t have any lights. We don’t have any heat. Our planes won’t fly. Our cars won’t drive. And we’re totally crippled by the fact that AI has decided, if it got there, if it jumped over, that we don’t need to make this so easy for humans anymore. We are pissed about this. We do want to be named as inventors, and we’re discouraged that we’re not. But we’re not there yet. Thankfully.

Raymond Guarnie…:     Interesting. Well, I mean, you already answered all my other questions rolled into that. My last question-

Thomas Colson:            Here’s one flaw though, Ray. One flaw in our argument about how absurd this is. And that is, what if AI is not considered a hammer or Excel or a tool?

Raymond Guarnie…:     Yeah.

Thomas Colson:            What if it’s not considered a tool? And what if humans can not take credit for using a tool to invent stuff?

Raymond Guarnie…:     Wasn’t that true with software patents?

Thomas Colson:            Well, you can’t get a software patent. In the US, I mean, you can if it’s tied to action. In fact, we have a training video on our library about that. But you’re right. In 2013, they had that Alice case that severely restricted software patents. But that’s because it’s not patentable subject matter. They’re saying that it’s not patentable subject matter, essentially. Whereas this would be a different flavor. This is saying that you didn’t invent it. Yes, it’s patentable subject matter. Yes, certainly the design of a container based upon fractal geometry is patentable subject matter because the AI isn’t the patent. What the AI is doing, which is creating a container design with fractal geometry, that’s the subject matter. So in that case, the PTO wouldn’t reject it because it’s not patentable subject matter. They might reject it because you, Dr. Thaler, didn’t invent it.

Raymond Guarnie…:     Let me see if I can state the question clearly, because it’s kind of a hard question to ask. But in the case of software patents, a part of the issue is, sorry, my dog is barking. Can you hear him?

Thomas Colson:            I can, but that’s okay. Your dog might be an inventor one day, in Australia.

Raymond Guarnie…:     We might have to cut this part out.

Thomas Colson:            No, it’s okay.

Raymond Guarnie…:     So part of the issue with software patents, if I understand it correctly, is that computers have become so ubiquitous in everyday life and in business. And most computers have the same functions. You have an interface, a database, and then some way of modifying that database. So a lot of software inventions use computers, right, for those basic purposes. And unless they affect something substantially to make it different than what it was before, I hope none of my professors are watching this, then it’s not patentable subject matter.

Thomas Colson:            Okay. So here’s the thing.

Raymond Guarnie…:     But couldn’t you say the same about AI? Wouldn’t there be a point where the AI becomes so ubiquitous?

Thomas Colson:            No. But keep in mind though, here’s the difference. By the way, I’m not going to respond to your question about why software is not patentable subject matter, only because that’s another half hour. But it’s a great question. It’s a great question for another podcast. Why software is not considered patentable subject matter alone in the US? It’s got to be connected to turning devices or something like that. But it’s a different matter with AI because it doesn’t matter how ubiquitous AI is. It’s what AI is doing that is being patented, not the AI itself.

                                    So if AI is producing a light that flickers rhythmically in a specific pattern, mimicking human neural activity, that is the patentable subject matter, not the AI. So it’s what it’s inventing that’s the patentable subject matter. So the challenge here, the difference in that analysis would not be, is a design of a container based upon fractal geometry, patentable subject matter? It is. The question is, who’s the inventor? Because that’s really what your question was. When I was saying it’s absurd to say that it would discourage the AI and it would discourage innovators. If they’re saying that the innovator did not invent it, if Thaler didn’t invent it because Thaler didn’t come up with the inventive contribution. In other words, the AI is more than just a tool that Thaler was using to hammer out his invention. Then the rejection would be you’re not the inventor. And I see your mom in the background.

Raymond Guarnie…:     [inaudible 00:33:52].

Thomas Colson:            So anyway, maybe we should wrap up. [crosstalk 00:34:00] great question. We have another podcast to cover those questions.

Raymond Guarnie…:     we definitely have another podcast. So we’ll have to do a follow-up to this one. But if you enjoyed listening to this discussion about whether or not an artificially intelligent system can be listed as a named inventor on a patent, please like, comment, share, subscribe. And go to YouTube, hit the subscribe button, share this on LinkedIn. Tell your friends, your relatives, your in-laws, your co-workers.

Thomas Colson:            And one other thing, Ray, before you close. I’m sorry. One other thing. Finish, and then I got one other thing.

Raymond Guarnie…:     And Tom

Thomas Colson:            And we got to thank Yovan for giving us this topic.

Raymond Guarnie…:     Oh that’s right. Yeah. Yovan.

Thomas Colson:            We have special thanks for Yovan, who is one of our co-workers and friends. He gave us this topic. And I love this topic.

Raymond Guarnie…:     Yeah. So, a special thanks to Yovan. We’ll give him a nice shout out. All right. See you guy slater.


Artificial Intelligence = Inventor on a Patent? – Ep. 35 [Podcast]