Bonum Certa Men Certa

EPO Throws DABUS Under the Bus... But for the Wrong Reasons

Not the applicant is the problem

DABUS meme



Summary: The hype and 'hot air' (or various buzzwords) surrounding algorithms which do "something clever" (not a new thing!) persist; DABUS is being rejected only because it's non-human, which means that a human can reapply with the same so-called 'invention'

THE European Patent Office (EPO) abandoned patent quality quite some time ago and this became rather obvious when Team Campinos/Battistelli -- a nonscientific bunch with ex-military officers -- took control of the Office, promoting things they haven't a clue about. They simply lack background and qualifications. Today's (or yesterday's) EPO examiners are far more suitable for management jobs than existing managers, who are handpicked for connections (nepotism). As the old saying goes, it's not about what you know but who you know...



The news about DABUS was covered here quickly (when the EPO came out with the statement). It's related to the issue of the EPO granting software patents in Europe under the guise of "HEY HI" (AI), albeit not so directly. In Europe, "HEY HI" is routinely used as an excuse for granting illegal patents. Less than 2 months ago this was even integrated into examination guidelines (in effect since). The same semantic nonsense had been leveraged to bypass 35 U.S.C. ۤ 101 at the U.S. Patent and Trademark Office (USPTO) -- another issue we covered here several times this year.

Since real journalism about patents is virtually dead the DABUS announcement was covered only by patent maximalists and their outlets. We know this for a fact because we've looked carefully until this morning. Who covered it and how?

"Since real journalism about patents is virtually dead the DABUS announcement was covered only by patent maximalists and their outlets."Well, the EPO mouthpiece IAM said (Joff Wild): "Whatever was decided once the first patent applications began to be assessed in which machines were specifically identified as inventors was going to matter, so in and of itself the EPO’s ruling is noteworthy. [...] Artificial intelligence is not going away, neither is invention by machine. Answers to the many IP questions this raises will have to be found – at legal, regulatory and strategic levels. And, of course, the subject is not confined to Europe, it is worldwide. If ever there was something for the major patent issuing authorities to be working on together, perhaps in concert with a WIPO expert group, this is it."

Sarah Morgan at World Intellectual Property Review wrote:

Late last week, the European Patent Office (EPO) refused two patent applications that list an artificial intelligence (AI) application as the sole inventor.

After hearing the arguments of the applicant, the EPO refused the European patent applications as they don’t meet the requirement that an inventor designated in the application has to be a human being, not a machine.

Dabus, the AI application that is named as inventor on both of the patents, is said to have designed a type of plastic food container and a flashing beacon light.


Law360, another outlet of patent maximalists, wrote this:



The European Patent Office announced Friday that it had rejected two patent applications that claimed the inventions at issue were created by artificial intelligence, ruling that under Europe’s patent laws, an inventor must be a human being.

The applications, which attracted worldwide attention when they were filed over the summer, marked the first-ever attempts to secure patent protection for inventions said to be entirely the work of artificial intelligence with no human involvement.

The EPO issued a brief statement announcing that it had refused the applications, which cover a beverage container and a flashing device to be used in search-and-rescue missions...


We loved this comment from "Do not pull my leg" -- an anonymous commenter who wrote that "artificial intelligence does appear no more than a hype, which will most probably end up like a deflated balloon. There is nothing intelligent in those machines whatever the applicant of both applications may say."

Here's the full comment:

Independently of the discussion relating to inventorship, it does not seem that the machine was so "intelligent" as the search in both cases has revealed very relevant documents.

In the case of the can, the mere connection of cans through their external profile is known. The only difference is that in the case of the application, the surface is a fractal surface. Whether this is inventive remains to be seen. As the application has been refused by the Receiving Section, we might never know.

As far as the light beacon is concerned, the whole invention seems entirely based on studies of the applicant himself. I would say if only the theory on which the applicant bases its application is proven that one could start believing what is going on. It would interesting if the applicant provides more than a “paper” invention and would show a real device working according to the claimed invention. To me this invention is nearing a substantial lack of sufficiency. As the application has been refused by the Receiving Section, we might never know.

What is striking as well, is that in both cases the notion of fractals come up. I do not think this is innocent.

When reading the explanations given about the way the invention was allegedly created, it is difficult to follow that “the machine was not trained on any special data relevant to present invention”, but a few lines higher is said that the machine. Either one or the other, but not both at the same time. The whole. A quick look at the references allegedly explaining the working of DABUS, at least US 5659666 has never crossed the Atlantic and US 7454388 has not led to a European Patent due to problems with Art 123(2). For the EP application corresponding to US 2015/0379394 summons to OP have been issued. Art 84 (if not Art 83) seems to be a major problem, so that we might also end up with problems under Art 123(2).

On the other hand, artificial intelligence does appear no more than a hype, which will most probably end up like a deflated balloon. There is nothing intelligent in those machines whatever the applicant of both applications may say.

They are only doing what they are told and if some self-perturbation of connection weights between neurons, like alleged in DABUS should all bring the desired result, this needs a bit more explanation.


This was posted in reply to a post from Rose Hughes of AstraZeneca, who filed this under "AI hype". So even patent maximalists realise it's nothing but marketing nonsense?

To Hughes' credit, she noted how (and where) they left a loophole:

It seems that the EPO can therefore neatly dismiss any need for detailed discussions on the morality of AI inventorship, so long as the AI inventor is not also claimed to be the owner of its creations. It has always been this Kat's view that the whole exercise of the AI inventor applications is slightly irrelevant given that what primarily matters from a legal standpoint is who owns an invention, and who should therefore be awarded the patent.

[...]

If Dr Thaler's appeal of the Receiving Office decision does indeed go ahead, IPKat will await the Statement of Grounds with interest (deadline for filing the appeal will be early 2020). Based on their submissions to the Receiving Office, it seems that the AI inventor team are lacking the legal arguments to overturn the decision. Moral and social arguments are unlikely to convince the Boards of Appeal. A request for a referral to the Enlarged Board can probably also be expected, but is similarly unlikely to be granted. None-the-less, the team have undoubtedly been successful in one goal, bringing attention to Dr Thaler and the team. Notably, we are only able to see the file history because early publication of the applications was requested. However, in this Kat's humble view, the whole argument surrounding AI inventorship is premature until the existence of an AI truly capable of a inventive act has been proved.


Appeal or no appeal, the person received plenty of publicity and could reapply with a real person's name. Maybe the whole thing was a premeditated publicity stunt all along.

What's at stake here isn't software patents, not directly anyway. When they use "HEY HI" to justify software patents it is a real issue however; sometimes not even that is necessary as massive corruption at EPO and an attack on the judges have both facilitated the granting of illegal patents such as patents on algorithms and only lawyers are happy, the litigation 'industry'. James Prankerd Smith (GJE) has just mentioned a European Patent pertaining to "algorithm [...] implemented on a computer" -- one that we named in passing before. The judges in this case aren't autonomous, so a real legal test would have to be outside the EPO:

This decision is certainly worth reading if you deal with inventive step objections of the form “abstract algorithm implemented on a generic computer” or the like. The Board of Appeal provides a helpful review of case law, and pushes back the frequent assumption that improved algorithms cannot give a technical effect. This decision could well be worth referencing when formulating a response to this type of objection.

The application relates to SQL database management, and claims a method of updating values in a data structure in a relational database system. This is a fairly classic case of an algorithm which could conceivably be abstract, but which is implemented on a computer in any modern industrial application.

The examining division originally refused the application under Article 52 EPC on the ground that it is directed to a purely abstract method. The Board of Appeal dismissed this ground, confirming the well-established low bar for patent-eligible subject-matter, with even “database system” being enough to give a technical element to the claim.

However, the examining division also sensibly set out an assessment of inventive step for an assumed computer-implemented version of the claimed method, in the expectation that the first hurdle of Article 52 EPC could potentially be overcome.

[...]

Although this was not a point discussed in the decision, it seems likely that it may be difficult to prove during prosecution that a particular feature has been motivated by technical considerations.

However, this can be significantly helped by identifying technical intentions and motivations at the drafting stage. In particular, by associating specific features with specific expected technical advantages in the specification as originally filed, the burden can be transferred onto the examiner to show that the feature lacks technical character.


For those who are in central Europe, this coming weekend there's a talk of interest. Benjamin Henrion has just mentioned "Discussion on Unitary Software Patents at 36C3 this Saturday" and the abstract says:

The Unitary Patent is the third attempt to impose software patents in Europe. Software patents are a threat to small- and medium-sized software companies that cannot defend themselves. The UPC (Unified Patent Court) is an international court made outside of the European Union (EU), which would have the last word over the question of software patenting. The Court would favour “patent trolls” which steal our jobs and extort money.


He recently organised a protest against this. We've seen no press reports however; does press coverage regarding patents still exist? Hardly. Many of the so-called 'articles' are composed by law firms directly or indirectly (the likes of Joff, their megaphone whom they pay to lobby).

Recent Techrights' Posts

Windows in Åland Islands: From 100% to Less Than Half
Åland Islands lost the sense of urgency to move to GNU/Linux
Not Just Slow News But Also Late News (Julian Assange Landing in Thailand)
Why did AP take so long (nearly a week) to release these?
[Meme] Smart Alec Poettering
How many Microsofters can the Debian Project withstand?
Getting Rid of Microsoft Does Not Go Far Enough
Microsoft already has many problems. One day Microsoft won't exist anymore. But that does not guarantee users' freedom.
Alyssa Rosenzweig's LibrePlanet Talk About Freeing the Apple GPU
Alyssa Rosenzweig is the graphics witch behind the reverse-engineered drivers for the Apple GPU. She previously led Panfrost, the free drivers for Arm Mali GPUs powering devices like the Pinebook Pro. She graduated in 2023 with a Computer Science degree from the University of Toronto and now writes free software full-time.
Links 30/06/2024: LLMs Under Fire and Dictatorship of the Old
Links for the day
[Meme] Walking Outside the Guardrails of the Walled Gardens Built by Monopolies
So-called "advertiser-unfriendly" material was never a problem for Wikileaks
 
200 This Week
Monday started with 40 articles/pages and this is #200
Press Complicity and Public Apathy All Along Enabled 14 Years of Illegal, Arbitrary Detention and Coercion Into Plea Bargain of Julian Assange on Brink of Death
They basically blackmailed him into letting the US 'win' the argument
At the End Journalism a Crime (If It Involves Accessing or Gaining Access to Documents Marked "Confidential" or "Classified" by Those Looking to Hide Their Misconduct/Crimes)
At least in the US, especially where the imperialism is at stake
Links 30/06/2024: Tensions in Korea and Japan, Criminalisation of Sleeping Outdoors
Links for the day
100% Slop/Spam From linuxsecurity.com
This is the kind of stuff that's killing the Web faster
Gemini Links 30/06/2024: Murdoch and Ideal OS
Links for the day
In the First 6 Months of 2024 Thailand Moved to GNU/Linux, Not to Windows Vista 11
maybe users moved from Vista 10 and 11 to GNU/Linux, seeing where Microsoft was heading with forced hardware "upgrades"
Eko K. A. Owen, New Outreach and Communications Coordinator for the FSF
Nice to see many new additions to the FSF's team
Microsoft Has Slaves and Enablers, Not Partners
Obligatory meme too
Tobias Platen Covered Freedom-To-Play Games in LibrePlanet 2024
Freedom-To-Play games using Taler
[Meme] Opening a 'Webapp' With 'Only' 4 GB of RAM
Until 2020 none of my PCs ever had more than 2 GB of RAM
Destination 'Five Percent'
We reckon GNU/Linux can break the 5% barrier some time by the end of this year, even without counting Chromebooks
A Crisis of Online Journalism
Almost a week ago a journalist was forced to plead guilty for an act of journalism
Germany One of Many Countries Where Microsoft's Bing Lost Market Share After All That LLM Nonsense (Bing Chat and Further Rebrands/Renames)
openai.com traffic plunged 60% last month
Microsoft’s Latest Antitrust Scrutiny
4 new stories
Microsoft Layoffs, Mass Plagiarism, and More
outrage included
GNU/Linux Climbed 0.25% This Month (in statCounter)
Around midday on Tuesday we'll start seeing preliminary data for July
Ilya Gulko Introduces Pollyanna
"Pollyanna is a web framework that makes it easy to create your own libre social space, such as a social network or blog."
'FSFE': Underage Labour, GAFAM Fronting, and Identity Theft to Undermine the FSF's Current Fundraiser
looking to raise funds at the same time as the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 29, 2024
IRC logs for Saturday, June 29, 2024
Links 29/06/2024: Astronauts at Risk, Ukraine Updates
Links for the day
Fedora and Red Hat Leftovers
mostly redhat.com
Microsoft is Now Googlebombing or Spamming 'Open Source' and 'Linux' to Promote Proprietary Surveillance, Azure
Notice the title and the image, what's being promoted etc.
Seychelles: GNU/Linux Doing OK
Seychelles cannot be considered poor
This War Crime Footage, Nothing Political Per Se, Is What They Made Julian Assange Plead Guilty To (War Criminals Not Convicted, Only Those Who Expose Them)
Wikileaks' Julian Assange: Exposing the US Military Crimes
Gemini Protocol Isn't Even Remotely "Dead"
"Lupa knows of 505,000 (half a million!) working Gemini URLs at present, up from about 425,000 this time last year"
About 10 New Free Software Foundation (FSF) Members Per Day
The total changed from 46 to 47 while typing the article
20 Years Passed, Let's Go Even Faster Now
We are hoping to bring more original stories
Vista 11 Adoption Unusually Low in Germany and It's Going Down, Not Up
This is not happening only in Germany
Kevin Korte on Computers Being Allowed to Make Decisions Based on Cryptic Algorithms and Proprietary/Secret Data
It uses buzzwords where none are needed
[Meme] Garbage In, Garbage Out (linuxsecurity.com)
It is neither Linux nor security, just chatbot-generated slop
Microsoft-Invaded CISA Spreads Anti-Free Software FUD (as If Proprietary Software Has No Memory Safety Issues), Brittany Day Uses Chatbots to Amplify and Permutate the Microsoft FUD
linuxsecurity.com became an anti-Linux spam site
Microsoft Laying Off Staff in an Act of Retaliation and Union-Busting
retaliatory layoffs at Microsoft
Gemini Links 29/06/2024: Content Drowning in 'Goo' and LLM Slop
Links for the day
Windows Lost Almost 92% Market Share in Egypt
From over 99% to just over 7%
In Ecuador, GNU/Linux Adoption Surged From Under 1% to Over 4% in About 3 Years
Not even counting Chromebooks
LibrePlanet: Cultivating Backups (of Recordings)
an appeal to recover some of these talks
Microsoft/Windows Machines Are Turned Off (or Windows Deleted/Decommissioned) in Web Servers, as the "Market Share" Collapse Continues
Taking full history into account, this is a decrease of over 90% in some cases
Corwin Brust Hosting Freedom: A Behind-the-scenes Tour With the GNU Savannah Hackers
"the "smiling faces" behind it."
Android at 90% or More in Chad
Windows below 2%
David Wilson: Cultivating a Welcoming Free Software Community That Lasts
"a feeling of shared ownership for all users."
Julian Assange Might Continue Wikileaks, But Certainly Not Yet (Recovery Time Needed)
And probably at a symbolic capacity only
Bringing in 12 Santas and Taking 13 Out (Old Interview With Julian Assange)
Julian Assange's life inside the Ecuadorian embassy
Neil Plotnick on GNU/Linux in the High School Classroom
uploaded to the LibrePlanet instance of MediaGoblin
Asia Appears to be Fastest to Adopt GNU/Linux
the home of a considerable majority of the world's population
Alexandre Oliva's LibrePlanet 2024 Talk About "Software Enshittification"
in spite of technical difficulties encountered while recording
What They Used to Do With Mono They Now Do With Systemd (Lower and Deeper Down Than Userspace)
Now we have a project started primarily by Red Hat (and managed by Microsoft GitHub, which is proprietary) being managed by Microsoft and primarily serving Microsoft and IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 28, 2024
IRC logs for Friday, June 28, 2024
Links 28/06/2024: Kangaroo Courts and Patents Spam, EFF Still Fighting for CPC's TikTok (a Digital Weapon)
Links for the day
Links 28/06/2024: Overton window and Polarization
Links for the day
[Meme] In 50 Years...
Microsoft's Vista 11 will take 50 years to be fully adopted
Only About 1 in 8 Russian Windows Users is Using Vista 11
it looks like over the past 12 months Vista 11 hardly grew and it remains very low at around 12% of Windows usage in Russia
Links 28/06/2024: More Attacks on the Press, More Censorship in Russia
Links for the day
Gemini Links 28/06/2024: Christmas Prematurely, Self-hosting
Links for the day
IBM: So Long, Suckers. Your Free OS is Now Proprietary. Pay IBM or Else.
almost exactly a year after turning RHEL into proprietary software
Vista 11 is Doomed and Despite Lack of Adoption Microsoft Already Speaks of Vapourware ("12")
"Microsoft has pulled a Windows 11 update after users reported boot loops and startup failures."
ChromeOS Reaches Highest Share in Years at the World's Most Populous Nation, Windows Now at All-Time Low of 13%
We're talking about India today
[Video] "It Is Incredible That Julian Assange Survives"
There was a positive and mutual relationship between Wikileaks and Dr Jill Stein
Never Assume That Because the Law Exists the Powerful Will Follow the Law
Who's going to hold them accountable now?
Nearly a Month Has Passed and Nobody at the Debian Project Even Attempted to Explain What Seems Like Back-dooring of Debian (and Hundreds of Distros That Are Debian-Derived)
I can cynically guess that only matters when a user with a Chinese name does it
[Video] Julian Assange Explains Wikileaks' Logistics
predating indefinite detention
IBM Was Never the "Good Guy", Just a Self-Serving and Opportunistic Money- and Power-Hungry Monopolist, Living Off of Taxpayers' Money (Government Contracts)
The Nazi Party of Germany was its second-biggest client at one point and now it's looking to profit from the work of slaves
"I Hated Working at IBM. They Were the Most Unfriendly People."
Don't forget what Watson the son did to a poor woman on a plane
State of the News (and Depletion of Journalism Online, Not Just Offline)
Newspapers are not coming back and the Web is not coming back either
GNU/Linux Consolidates in North America
Android rising a lot this year, too
[Meme] More Monopolies Granted While Patent Examiners Die (Overworking for Less Compensation)
Work more; Get less
Staff Union of the EPO (SUEPO) is Taking the New Pension Scheme (NPS) to an International Tribunal (ILOAT)
SUEPO wants more EPO staff to participate in collective action
Stella Assange and the Legal Team Speak to the Media a Day After WikiLeaks Founder Julian Assange Arrives in Australia
Published yesterday by a number of mainstream publishers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 27, 2024
IRC logs for Thursday, June 27, 2024
RIP Daniel Bristot de Oliveira, Red Hat death
Reprinted with permission from Daniel Pocock