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May 23, 2023


I would daresay that the Constitution (and especially the Patent Clause at point here) was NOT written in a vacuum, so that while the 'plain words' may not EXPLICITLY reach the human individual, anyone who has studied the history of innovation would be well aware that the Quid Pro Quo of the patent deal is explicitly related to reach the human individual, insofar as the Lockean nature of turning a MAN'S inchoate right into a full basket of legal property rights was not only well understood - it serves as the bedrock upon which the RARE use of "Right" is reflected in our Constitution.

I am well aware of naysayers (and looking directly at you, Mr. Greg DeLassus) who for whatever reason want to pretend that this foundation simply is not - and never was - there, but there has been NO provision of any basis for this (rather odd) view.

Further - as noted in the Simian Selfie Case (Naruto), OUR laws are the laws of man.

Certainly, Naruto was capable of -- and did -- take the photograph which captured an expression in tangible media. But the OBJECT of the Patent Clause (the same one that is at point for copyright) negates the ability of Naruto to be granted a Copyright.

As with expression and Copyright, so too
then with invention and Patent.

In this piece I would have wished for more discussion of the difference between a mere "design" outputted by an AI and a conceived inventive concept defined by a patent claim.

We patent attorneys are trained to think about ladders of abstraction. European patent attorneys, for example, draft claims in "onion layer" style. Claim 1 is the outermost layer of the onion and the innermost layer is the best mode. Usually, there are multiple intervening levels of generality/particularity as one drills down from the bare minimum of technical features in combination that define the new and useful concept, all the way down to the best embodiment.

Only when an intelligence can reliably draft the independent claim that captures all the commercial value while not embracing the known prior art can one credibly assert that it has contemplated the prototype design and gone on to "conceive" a patentable invention. No AI has got that far yet, right?

And even when one does, the fix is to allow the owner of the clever AI legitimately to assert ownership of the conceived invention. With that, there will be no loss of incentive to invent and then to file at the PTO.

"Only when an intelligence can reliably draft the independent claim that captures all the commercial value while not embracing the known prior art can one credibly assert that it has contemplated the prototype design and gone on to 'conceive' a patentable invention."

Huh? How many *human* inventors can be reliably left to draft such an independent claim? Fewer than 5%, in my experience. Drafting claims is lawyer work, not inventor work. If your test for determining whether an AI has conceived an invention would also exclude most human inventors from counting as having conceived an invention, that suggests to me that your test if faulty.

Excellent riposte, Greg. As you say, claim drafting is attorney work. I must try again.

But your riposte doesn't convince me yet. When I, as a patent attorney, start to interrogate an inventor on their invention disclosure statement, neither the inventor nor I has a conception of the feature combination that will constitute claim 1 of the patent application that I will be afterwards drafting. The inventor answers my questions, and from those answers, the inventive concept emerges. In the case of a human inventor, the concept emerges from the mind of that inventor but only with the prompting of the patent attorney.

I have yet to work with an AI as candidate for the status of inventor. Perhaps (I don't know) I would be unable to tell the difference between a real engineer and an AI, in my interviewing of the entity that has outputted the invention disclosure statement. In that case, yes, I grant you, who to name as inventor would be problematic.

Your view of the role of the attorney is expressly wrong MaxDrei, and would — in fact — make the attorney to be At Least a co-inventor, as your version of “conception” FIRST appears in the mind of the attorney ONLY.

Skep, I don't yet see it that way. The way I see it, deriving from the EPC, under which an invention is a solution to a technical ptoblem, the questions from the attorney, looking at the inventor's work product, prompt the inventor to reflect on what their contribution to the art is, what is their invention, and how does it "work".

In other words, the inventor is compelled by the questioning of the attorney to determine in their own head something the attorney doesn't know, namely, what is the absolute minimum number of technical features which, working in combination, solve the problem, deliver the non-obvious "contribution" to the art. That is the patentable conception, and it is in the mind of the inventor rather than the attorney.

After that, it falls to the scrivener to record in the words of a claim what the inventor's inventive concept is.

That said, I am quick to agree that, in house at least, it will often be in order to name the questioner as co-inventor.

It is noteworthy that the arguments submitted by Mr Thaler and his attorneys did not refer to the content of the applications at issue.

European application EP3563896 (“Devices and methods for attracting attention”) is equivalent to one of the US applications at issue in the CAFC decision, Ser. No 16/524,350 (teaching a “neural flame”) and sheds light on its content.

It includes references to “spiritual significance”, “cosmic consciousness”, “deity”, “religion” which, to say the least, speak volumes about the credibility of Mr Thaler’s claim that DABUS is the inventor of his applications.

See paragraphs [0019], [0020], [0021] and [0058] of the description of EP3563896 :

[0019] Embodiments of the present invention further provide a symbol celebrating the unique tempo by which creative cognition occurs. The algorithmically-driven neural flame may be incorporated within one or more structures that resemble candles or altar fixtures, for instance, to accentuate the light’s spiritual significance. It is noted that that the light source or beacon can incorporate any type of light-emitting device.

[0020] Such embodiments stem from the notion of one perceiving neural net monitoring another imagining net, the so-called “Creativity Machine Paradigm” (Thaler 2013), which has been proposed as the basis of an “adjunct” religion wherein cosmic consciousness, tantamount to a deity, spontaneously forms as regions of space topologically pinch off from one another to form similar ideating and perceiving pairs, each consisting of mere inorganic matter and energy. Ironically, this very neural paradigm has itself proposed an alternative use for such a flicker rate, namely a religious object that integrates features of more traditional spiritual symbols such as candles and torches.

[0021] Moreover, in a theory of how cosmic consciousness may form from inorganic matter and energy (Thaler, 19978 , 2010, 2017), the same attentional beacons may be at work between different regions of spacetime. Thus, neuron-like, flashing elements may be used as philosophical, spiritual, or religious symbols, especially when mounted atop candle- or torch-like fixtures, celebrating what may be considered deified cosmic consciousness. Such a light source may also serve as a beacon to that very cosmic consciousness most likely operating via the same neuronal signaling mechanism.

[0058] Furthermore, aspects of the present invention provide an object of contemplative focus embodying symbolic meaning of varying significance (e.g., philosophical/religious) due to the fact that the unique fractal rhythms used are those thought to: (1) be exploited by the brain to detect idea formation, and (2) have grandiose meaning as the temporal signature of creative cognition,
whether in extraterrestrial intelligence or cosmic consciousness.

Max Drei,

Your answer is as puzzling as it is discombobulated.

One does not -- and cannot -- become a co-inventor (or not) for the same activity as merely a function of "being in-house" or not.

May I suggest that you spend more time learning of the US system rather than pitching "the EPO Way?"

watch global,

On the contrary, the 'wackiness' of that writing actually SPEAKS MORE to it having been generated by an AI.

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