Dude Who Keeps Suing To Try To Get His AI To Get A Patent Or Copyright Loses Again: Appeals Court Once Again Says No

Patents

from the ai-nonsense dept

Stephen Thaler is a man on a mission. It’s not a very good mission, but it’s a mission. He created something called DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) and claims that it’s creating things, for which he has tried to file for patents and copyrights around the globe, with his mission being to have DABUS named as the inventor or author. This is dumb for many reasons. The purpose of copyright and patents are to incentivize the creation of these things, by providing to the inventor or author a limited time monopoly, allowing them to, in theory, use that monopoly to make some money, thereby making the entire inventing/authoring process worthwhile. An AI doesn’t need such an incentive. And this is why patents and copyright only are given to persons and not animals or AI.

But Thaler has spent years trying to get patent offices around the world to give DABUS a patent. I’ll just note here that if Thaler is correct, then it seems to me that he shouldn’t be able to do this at all, as it’s not his invention to patent. It’s DABUS’s. And unless DABUS has hired Thaler to seek a patent, it’s a little unclear to me why Thaler has any say here.

Either way, Thaler’s somewhat quixotic quest continues to fail. The EU Patent Office rejected his application. The Australian patent office similarly rejected his request. In that case, a court sided with Thaler after he sued the Australian patent office, and said that his AI could be named as an inventor, but thankfully an appeals court set aside that ruling a few months ago. In the US, Thaler/DABUS keeps on losing as well. Last fall, he lost in court as he tried to overturn the USPTO ruling, and then earlier this year, the US Copyright Office also rejected his copyright attempt (something it has done a few times before). In June, he sued the Copyright Office over this, which seems like a long shot.

And now, he’s also lost his appeal of the ruling in the patent case. CAFC, the Court of Appeals for the Federal Circuit — the appeals court that handles all patent appeals — has rejected Thaler’s request just like basically every other patent and copyright office, and nearly all courts.

The ruling is pretty straightforward:

This case presents the question of who, or what, can be an inventor. Specifically, we are asked to decide if an artificial intelligence (AI) software system can be listed as the inventor on a patent application. At first, it 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.

The United States Patent and Trademark Office (PTO) undertook the same analysis and concluded that the Patent Act defines “inventor” as limited to natural persons; that is, human beings. Accordingly, the PTO denied Stephen Thaler’s patent applications, which failed to list any human as an inventor. Thaler challenged that conclusion in the U.S. District Court for the Eastern District of Virginia, which agreed with the PTO and granted it summary judgment. We, too, conclude that the Patent Act requires an “inventor” to be a natural person and, therefore, affirm.

The CAFC ruling doesn’t get that deep into the issues — it just looks at the US Patent Act and says “um, duh, seems kinda obvious that this only covers human beings.”

The Patent Act does not define “individual.” However, as the Supreme Court has explained, when used “[a]s a noun, ‘individual’ ordinarily means a human being, a person.” Mohamad v. Palestinian Auth., 566 U.S. 449, 454 (2012) (internal alteration and quotation marks omitted). This is in accord with “how we use the word in everyday parlance”: “We say ‘the individual went to the store,’ ‘the individual left the room,’ and ‘the individual took the car,’ each time referring unmistakably to a natural person.” Id. Dictionaries confirm that this is the common understanding of the word. See, e.g., Individual, Oxford English Dictionary (2022) (giving first definition of “individual” as “[a] single human being”); Individual, Dictionary.com (last visited July 11, 2022), https://www.dictionary.com/browse/individual (giving “a single human being, as distinguished from a group” as first definition for “individual”). So, too, does the Dictionary Act, which provides that legislative use of the words “person” and “whoever” broadly include (“unless the context indicates otherwise”) “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1 (emphasis added). “With the phrase ‘as well as,’ the definition marks ‘individual’ as distinct from the list of artificial entities that precedes it,” showing that Congress understands “individual” to indicate natural persons unless otherwise noted. Mohamad, 566 U.S. at 454.

Consequently, the Supreme Court has held that, when used in statutes, the word “individual” refers to human beings unless there is “some indication Congress intended” a different reading. Id. at 455 (emphasis omitted).4 Nothing in the Patent Act indicates Congress intended to deviate from the default meaning. To the contrary, the rest of the Patent Act supports the conclusion that “individual” in the Act refers to human beings.

For instance, the Act uses personal pronouns – “himself” and “herself” – to refer to an “individual.” § 115(b)(2). It does not also use “itself,” which it would have done if Congress intended to permit non-human inventors. The Patent Act also requires inventors (unless deceased, incapacitated, or unavailable) to submit an oath or declaration. See, e.g., id. (requiring oath or declaration from inventor that “such individual believes himself or herself to be the original inventor or an original joint inventor of a claimed invention in the application”). 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 the requisite statements himself, purportedly on DABUS’ behalf.

The panel easily rejects Thaler’s arguments that try to get around this, which aren’t even worth bothering with here (they were pedantic and nitpicky, and the CAFC panel rightly treats them as nonsense). Then the panel notes that, look, there’s really no debate here, and this whole campaign by Thaler is obviously silly:

Statutes are often open to multiple reasonable readings. Not so here. This is a case in which the question of statutory interpretation begins and ends with the plain meaning of the text. See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1749 (2020) (“This Court has explained many times over many years, when the meaning of the statute’s terms is plain, our job is at an end.”). In the Patent Act, “individuals” – and, thus, “inventors” – are unambiguously natural persons.

Given Thaler’s willingness to file suits and appeals all over the globe, I imagine he’ll now petition the Supreme Court as well, though it seems unlikely the court will be interested — but these days, you never really know.

At this point, i believe the only country that has actually taken Thaler seriously (other than that one brief blip in Australia) is South Africa. Amusingly, Thaler tried to use South Africa’s approval as part of his argument here in the US, and that was laughed off pretty easily.

Thaler also notes that South Africa has granted patents with DABUS as an inventor. This foreign patent office was not interpreting our Patent Act. Its determination does not alter our conclusion.

Thaler’s weird campaign is a distraction. It’s good to see courts and patent agencies around the globe (mostly) shutting it down. Opening up patents and copyrights to AI would be a disaster and would create lots of serious problems for actual innovation and creativity. Unless Thaler is doing this deliberately to lose and set good precedent, he’s a gadfly, wasting the time of lots of people over a very silly quest.

Filed Under: ai, ai patents, cafc, dabus, patents, stephen thaler