Bonum Certa Men Certa

'Artificial Intelligence' (AI) Will Only Doom Patent Offices If It's Used to Stamp Millions of Invalid Patents (IPs)



The real threat to patent systems isn't computerised application and examination but lowering of the patent bar below what's permissible

Artificial Intelligence: When the office tells you you've been granted an 'Artificial Intelligence' patent. And then you realise it's just another bogus software patent court will reject.



Summary: The Artificial Intelligence (AI) craze is being used as an excuse or as a pretext for granting loads of patents on mathematics and statistics (maths and stats aren't permissible or eligible for patent coverage); by calling just about everything "Artificial Intelligence" (or AI, or "hey hi!") they hope to mislead examiners, who are also being presented with new guidelines full of these buzzwords

THE European Patent Office (EPO) and its biggest American 'counterpart' (they serve the same large corporations) keep granting software patents without qualm. It doesn't seem to bother the judge-hostile Battistelli and his 'lapdog' António Campinos that courts keep rejecting such patents. After all, patent compliance or patents' validity/compliance/adherence with respect to the law only serves to impede 'productivity' (when defined in terms from the manufacturing sector -- surely an inadequate yardstick).



"After all, patent compliance or patents' validity/compliance/adherence with respect to the law only serves to impede 'productivity' (when defined in terms from the manufacturing sector -- surely an inadequate yardstick)."We remain concerned seeing how corporate media has hyped up "AI" (hey hi!) in recent years -- a discipline which goes back almost to the dawn of computer science and whose name is often misused to mean anything from automation to computers. "AI" is nowadays a junk marketing term (or acronym).

Max Walters, writing for patent maximalists or law firms in London (as usual), has just published this piece about "AI" as "inventor" (yes, everything is "AI" now). To quote a portion:

In-house counsel have expressed surprise at an “under the radar” update by the UKIPO on whether AI can be named as an inventor – though they say the practical implications will be limited at this stage.

Counsel in the optical products, automobile and pharma industries say they are some distance away from patenting AI-led inventions but have questioned the UKIPO’s decision to publish the update now.

The update also throws open the debate of who should be named as an ‘inventor’ under patent law and how businesses should react, they say.


When they say things like "AI-led inventions" they just mean to say that discovery was aided by some computer, using for example statistical analysis, and now they want a monopoly on it. It's that new sort of 'moral' panic, framed in the context of patents being granted to "machines" instead of dealing with the real underlying issue: should patents on maths or data analysis be granted at all? This too they call "AI" and here's a new (and newly-granted) example (via) of “HEY HI”-washing fake patents. "The claims are directed to the computer-implemented method of utilizing artificial intelligence for adaptive decision-making, or reduced to its basic form, problem solving."

"When they say things like "AI-led inventions" they just mean to say that discovery was aided by some computer, using for example statistical analysis, and now they want a monopoly on it."More patents on maths and stats! Hurray! Now good luck with that in courts. If that patent ever gets there...

There's meanwhile this new conference named after buzzwords and lies, not only “HEY HI” but also the “property” canard. Rachel Platts (via Neil Wilkof) throws in more buzzwords and hype, including "big data" and "blockchain". The introduction says: "On 17 and 18 October 2019, the Academy of European Law (ERA) hosted a conference in Brussels on "Artificial Intelligence: Challenges for Intellectual Property Law". The conference focused on how Artificial Intelligence is, or will impact, on various aspects of IP law."

Notice how many times they say "AI"; a lot of the time it has nothing to do with it and even the term "IP" gets misused. Here's a sample of this buzzwords salad:

This session, presented by Doris Thums from the European Patent Office, focused on the patentability of AI inventions. Thums raised issues that pose challenges to the patentability of AI inventions, such as obviousness (it may be difficult to define the skilled person). It was suggested that the skilled person can be part of a team, so an AI program could be one of these persons. Further, when considering inventions created by AI, at present the human is not completely removed from the inventive process, such as the inputting data, setting parameters, or combining the results.

In considering whether the EPC and the EPO are equipped to handle the changes which AI and AI-generated inventions may bring, Thums was optimistic. She noted that existing legal norms and their interpretation are adaptable and case law reflects this. The results of case law has a direct impact on practice manuals and examination methods.

Also included in this session was brief input from Taliah Walklett from Nokia (who was quick to dispel common belief that Nokia were no longer around, they simply no longer make mobile phones anymore!), providing an industry perspective on patentability issues. In Walklett’s experience, since AI inventions continue to have a reasonable degree of human input, ownership issues have not arisen in practice. Further, challenges were currently being faced in searching the prior art and how to future-proof patents are being filed now.

After lunch, Vincent Cassiers (Lecturer, UC Louvain) discussed trade secrets in relation to AI under EU law. Discussion centered on the Trade Secrets Directive and how this has impacted on AI inventions, concluding that trying to control the input of AI and the algorithms seemed impractical in the face of the pace of the evolving technology. Instead, the focus should be on an obligation to explain how the processing works and how the decision is taken by the AI to allow transparency.


Benjamin Henrion has meanwhile noticed this other new nonsense -- a session entitled "The European patent system: What role for patents in times of Artificial Intelligence, climate change and other global challenges?"

"More patents on maths and stats!"Well, in times of Artificial Intelligence hype wouldn't we want to be lectured by a lawyer from Düsseldorf?

As Henrion told me that day: "Düsseldorf is the European capital of patent trolling. Worked there for a year, lots of people working in the patent industry."

Watch the litigation nonsense plus the buzzwords:

14.00 – 15:15 Patents Statements & panel discussion

Topic:

The European patent system: What role for patents in times of Artificial Intelligence, climate change and other global challenges?

Chair: Dr Frank-Erich Hufnagel, LL.M., Lawyer, Düsseldorf

Speakers/Panelists: Prof. Dr Christian Heinze, LL.M., Chairholder, Chair of Civil Law and Intellectual Property Law, especially Patent and Trademark Law, Leibniz University of Hannover Prof. Dr Lea Tochtermann, Juniorprofessorship for Civil Law and European Patent Law, University of Mannheim N.N., EU Representative, Unit F.3, DG GROW, European Commission, tbc


They even added "climate change" to it; as did the EPO just before the weekend. It gives a monopoly on what it calls "mitigation technology inventions" so those wanting or trying to tackle climate change will be sued, or terrified to even begin. This EPO greenwash will backfire.

"This EPO greenwash will backfire."Meanwhile, across the Atlantic, this whole AI-wash is also a big problem. The USPTO hopes to use stupid buzzwords like "hey hi" to justify granting illegal patents that are very clearly abstract!

Aaron Gin, a longtime proponent of such patents (check his occupation for an explanation), has just revisited this subject and said:

In August, the USPTO previously requested comments on AI inventions with respect to patent law and policy. The questions from the first Notice covered a variety of patent-related topics, including whether revisions to patent laws may be needed. The current Notice extends similar inquiries to ask how AI may affect non-patent areas of IP (e.g., copyright, trademark, and other intellectual property rights). Notably, some of the questions could even foreshadow how examination procedures might evolve at the USPTO to include AI-based trademark searches. The Notice stated that public comments in these areas would aid the USPTO to evaluate whether further guidance to the Examining Corps is needed and to assist in the development of any such guidance with respect to intellectual property policy and its relationship with AI.

The USPTO has clearly made understanding the benefits/drawbacks of AI an action item for itself in the near future, on the policy front, and possibly in its own examination practice. The Notice itself pledges that "[t]he USPTO is committed to keeping pace with this critical technology in order to accelerate American innovation." Furthermore, the Patent Office has an open job posting for a "Senior Level Artificial Intelligence Technical Expert" whose responsibilities may include "operational implementation of Artificial Intelligence (AI) infrastructure/architecture throughout the enterprise." Going forward, it will be interesting to see how AI impacts existing patent and non-patent IP law and policy, as well as how AI-based innovations will be incorporated into the operation of the USPTO.


Read that carefully; those are obviously just software patents.

"The staff is well aware of the decline in patent quality and the collapse of patent validity rates."The USPTO has little to gain from this in the long run as credibility of US patents as a whole will erode. Courts will throw them out at astounding rates (in our Daily Links for the weekend we're including some reports about record-breaking invalidations, with low rates of rejections being overturned by PTAB).

Going back to the European patent system, Prof. Chien (US), who wrote some papers about 35 U.S.C. €§ 101, is paraphrased as saying that "key difference is the early availability, before the EPO, of a search report that allows applicants to make decisions on continuation of the application..."

Has she paid attention to what the EPO does nowadays? Chien is a very talented scholar and we cite her work a lot. But the EPO isn't what it was half a decade ago -- a subject we'll expand on in our next post. Here's how Léon Dijkman put it:

Last week, the Intellectual Property subcommittee to the U.S. Senate Committee on the Judiciary held a hearing to inquiry how the U.S. Congress can prevent the issuance of poor quality patents [video recording and testimony transcripts here]. The hearing was part of a series to educate the subcommittee on the current state of U.S. patent law in light of the proposed STRONGER Patents Act of 2019.

[...]

After the testimonies, the senators posed questions to the witnesses. Professor Wagner explained his view that Congress should be careful about instituting sweeping reforms because they will affect different industries differently and changes might well work to the detriment of smaller companies and individual inventors [video recording at 01:03:00, referencing earlier work in which he surveyed how the change to a first-to-file system had affected individual inventors, here].

Senator Blumenthal expressed concern about perceived abuse of the patent system by pharmaceutical companies. He asked the panel (i) if there was agreement among them that pharmaceutical companies sometimes use patents in an anti-competitive manner and (ii) whether this is an issue of patent quality [video recording at 01:12:15]. Several panel members seemed to agree that there is indeed potential for "strategic behaviour" by pharmaceutical companies, but it was pointed out that more than anything such behaviour arises out of the interaction between the patent system and the regulatory framework (or lack thereof). Professor Wasserman made the interesting suggestion to let the patent office spend more time on applications that are likely to be listed in the Orange Book, i.e. the list of drugs approved for marketing [video recording at 01:16:30].

Professor Chien compared practices and quality between the USPTO and the European Patent Office (EPO) [video recording at 01:07:30, drawing on a 2018 paper, here]. According to Professor Chien, the key difference is the early availability, before the EPO, of a search report that allows applicants to make decisions on continuation of the application at a very early stage of the process.


The blog post as a whole isn't bad (for IP Kat standards), but the comments are better. Yes, the far more interesting part of this debate is in comments, of which there are plenty (the blog has long suppressed critical comments regarding EPO affairs, but patent quality deals with more technical aspects). We'll continue this discussion in our next post, which revolves around EPO unrest. The staff is well aware of the decline in patent quality and the collapse of patent validity rates.

Recent Techrights' Posts

In defence of JD Vance, death of Pope Francis
Reprinted with permission from Daniel Pocock
Three Years in Prison for Disney Employee’s ‘Menu Hacking’: The Economic Fallout of Digital Menus
Reprinted with permission from Ryan Farmer
Approaching 10,000 Articles/Pages Since Going Static
Trying to silence or derail the site was always a dumb strategy
Microsoft is Shedding Off Loads of Staff and That Can be Dangerous Too
Working for Microsoft is a choice; nobody forces you to do it
Richard Stallman and the Unix Philosophy
When asked about systemd people must remember that RMS speaks as an active Board member of the FSF and also the founder of the FSF
Get Rid of Back Doors, Don't Obsess Over Bounties and Other Corporate PR Stunts (or Needless Reboot Rituals)
Security as a term has mostly lost its meaning due to repeated misuse for many years
Serial Sloppers Are Killing the Web (They Probably Don't Care, Either)
Slop is a disease on the Web
 
Links 26/04/2025: Facebook Layoffs Again, Remembering What's Real, and Say No to Mass Surveillance
Links for the day
Links 26/04/2025: NOAA Budget Cuts and "Dog Days Ahead"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 25, 2025
IRC logs for Friday, April 25, 2025
Links 25/04/2025: Slop Fatigue and Patent Judges Flocking to Fake, Unconstitutional and Illegal Kangaroo Court (UPC, Captured 'Justice')
Links for the day
Gemini Links 25/04/2025: Night Manager and Devuan in Hosting
Links for the day
Windows Falls to New Lows in Nicaragua, Now Below a Quarter (It Used to be Almost 100%)
Another all-time low for Windows
The Cost (to Linux) of LLM Slop
Slop 'artists' like Fagioli are far from harmless
Links 25/04/2025: Ubisoft Spyware, Hegseth Fails at Tech on Every Level
Links for the day
Gemini Links 25/04/2025: Food Forest Update and Facebook Destroying the Net
Links for the day
Streaming Apps Are “Investor Fraud” That Kills the Planet
Reprinted with permission from Ryan Farmer
Things Get Increasingly Nasty at Microsoft Ahead of the Fake Results and May's Mass Layoffs Wave
They try to get people to 'resign' so that they won't count as layoffs and the company's 'wellbeing' will seem better
IBM's Debt Ballooned by 8.5 Billion Dollars in Just 3 Months!
Hallmark of a company in a state of disarray, trying to spend its way out of trouble
Big Trouble in GNOME
even GNOME people admit the CoC went wrong
Slopping the Trough: Disney Plus Loses Billions and the Decline of Physical Media in America
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 24, 2025
IRC logs for Thursday, April 24, 2025
Links 24/04/2025: GAFAM Problems and No Peace (or Ceasefire) in Sight
Links for the day
Slopfarms on the Web Almost Always Generate Anti-Linux FUD When They Produce "Linux" Output
Welcome to the dying Web
Richard Stallman's Oxford Talk Has Just Ended, Here Are Some Photos
he might hop over to another European country
Gemini Links 24/04/2025: Birthday and Good Work of Academia in Esotericism
Links for the day
Links 24/04/2025: EU fines Apple and Facebook, Another Microsoft GitHub Security Blunder
Links for the day
New Article Explains How the GPL Came About and WordPress Having Copyleft Obligations
Having been involved in the WordPress development community since almost the beginning, I know why it chose the GPL and how it restricts abuse by Automattic
IBM Gained Almost 6 Billion Dollars in "Goodwill" Value in Just 3 Months, According to IBM
Congrats to the management!
In Belarus, Yandex is Now Measured as 50 Times More 'Popular' (by Usage) Than Microsoft
Yandex continues to gain, whereas Bing cannot even register at 1%. Last month it was registered or measured at a measly 0.65%.
IBM Cannot Lie to Shareholders Anymore
"I would not be surprised if we see a layoff every quarter this year."
Dr Richard Stallman (RMS) Gives Talk in Oxford University in 4 Hours
If you live nearby, go there (it's free as in gratis)
Using a Law Firm's Licence to Exercise Politics Through Frivolous SLAPPs and Nastygrams (to Silence People, Remove Pages, Demand Fake or Forced 'Apologies')
Things must be getting really bad when lawyers act for raving antisemites
We're Working to Make Full-Site Search Available
This site has over 1,000 'wiki' pages, many thousands of documents, several thousands of videos, and about 50,000 blog posts or articles. We need to make them easier to find/navigate.
Links 24/04/2025: IBM Loses Many Contracts, Intel to Lay Off Over 20% (Not Counting Those Who Leave 'Voluntarily')
Links for the day
Richard Stallman Can Explain to Oxford Artificial Intelligence Society Why LLM Slop is Not Artificial Intelligence and Why It Hurts Society
another 'crop' of LLM slop that damages GNU/Linux and facts
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 23, 2025
IRC logs for Wednesday, April 23, 2025