USPTO Suggests That AI Algorithms Are Patentable, Leading To A Whole Host Of IP And Ethics Questions

from the locking-up-life dept

The world is slowly but surely marching towards newer and better forms of artificial intelligence, with some of the world's most prominent technology companies and governments heavily investing in it. While limited or specialist AI is the current focus of many of these companies, building what is essentially single-trick intelligent systems to address limited problems and tasks, the real prize at the end of this rainbow is an artificial general intelligence. When an AGI could be achieved is still squarely up in the air, but many believe this to be a question of when, not if, such an intelligence is created. Surrounding that are questions of ethics that largely center on whether an AGI would be truly sentient and conscious, and what that would imply about our obligations to such a mechanical being.

Strangely, patent law is being forcibly injected into this ethical equation, as the USPTO has come out in favor of the algorithms governing AI and AGI being patentable.

Andrei Iancu, director of the U.S. Patent and Trademark Office (USPTO), says that the courts have strayed on the issue of patent eligibility, including signaling he thought algorithms using artificial intelligence were patentable as a general proposition.

That came in a USPTO oversight hearing Wednesday (April 18) before a generally supportive Senate Judiciary Committee panel.

Both Iancu and the legislators were in agreement that more clarity was needed in the area of computer-related patents, and that PTO needed to provide more precedential opinions when issuing patents so it was not trying to reinvent the wheel each time and to better guide courts.

On some level, even without considering the kind of AI and AGI once thought the stuff of science fiction, the general question of patenting algorithms is absurd. Algorithms, after all, are essentially a manipulated form of math, far different from true technological expression or physical invention. They are a way to make equations for various functions, including, potentially, equations that would both govern AI and allow AI to learn and evolve in a way not so governed. However ingenious they might be, they are most certainly no more invention than would be the process human cells use to pass along DNA yet discovered by human beings. It's far more discovery than invention, if it's invention at all. Man is now trying to organize mathematics in such a way so as to create intelligence, but it is not inventing that math.

Yet both the USPTO and some in government seem to discard this question for arguments based on mere economic practicality.

Sen. Kamala Harris drilled down on those Supreme Court patent eligibility decisions -- Aliceand Mayo, among them -- in which the court suggested algorithms used in artificial intelligence (AI) might be patentable. She suggested that such a finding would provide incentive for inventors to pursue the kind of AI applications being used in important medical research.

Iancu said that generally speaking, algorithms were human made and the result of human ingenuity rather than the mathematical representations of the discoveries of laws of nature -- E=MC2 for example -- which were not patentable. Algorithms are not set from time immemorial or "absolutes," he said. "They depend on human choices, which he said differs from E=MC2 or the Pythagorean theorem, or from a "pattern" being discovered in nature.

Again, this seems to be a misunderstanding of what an algorithm is. The organization and ordering of a series of math equations is not human invention. It is most certainly human ingenuity, but so was the understanding of the Bernouli Principle, which didn't likewise result in a patent on the math that makes airplanes fly. Allowing companies and researchers to lock up the mathematical concepts for artificial intelligence, whatever the expected incentivizing benefits, is pretty clearly beyond the original purpose and scope of patent law.

But let's say the USPTO and other governments ignore that argument. Keep in mind that algorithms that govern the behavior of AI are mirrors of the intelligent processes occurring in human brains. They are that which will make up the "I" for an AI, essentially making it what it is. Once we reach the level of AGI, its reasonable to consider those algorithms to be the equivalent of the brain function and, by some arguments, consciousness of a mechanical or digital being. Were the USPTO to have its way, that consciousness would be patentable. For those that believe we might one day be the creators of some form of digital life or consciousness, that entire concept is absurd, or at least terribly unethical.

Such cavalier conversations about patenting the math behind potentially true AGI probably require far more thought than asserting they are generally patentable.

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Filed Under: ai, algorithms, alice, math, patents, uspto


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  1. identicon
    Anonymous Coward, 30 Apr 2018 @ 10:50pm

    Patent Trolling - the ultimate AI algorithm

    Maybe the best AI is already in use - generate patents by combining words: "suggested reading list" and then search the internet for violations.

    Maybe there are no such law firms, but AI (or Anon-I) algorithms generating hourly billing (in seconds).

    Now the USPTO decision makes sense.

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