11.09.19

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

Posted in Europe, Patents at 8:46 am by Dr. Roy Schestowitz

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

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 . 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 .

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 . 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 .

Professor Chien compared practices and quality between the USPTO and the European Patent Office (EPO) . 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. █

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