WE DULY apologise to readers who find our criticism of Red Hat (and by extension IBM) inconvenient, but we are being totally sincere. People who have read this site long enough are aware that for nearly a decade we've warned that Red Hat's patents would likely fall into untrustworthy hands. We even challenged Red Hat employees (like their legal team) on the matter and their responses weren't too convincing. Logical arguments just weren't on their side given the hypothetical scenarios presented to them (notably sale of Red Hat to a software patents proponent). This isn't the same Red Hat that publicly opposed software patents 15 years ago in Europe and even put money where its mouth was.
"People who have read this site long enough are aware that for nearly a decade we've warned that Red Hat's patents would likely fall into untrustworthy hands."Earlier this year we cited and even made screenshots of evidence (press reports) that IBM is still blackmailing small and large companies using a massive trove/portfolio of dubious patents, including if not primarily software patents. This has hardly changed since April. The new management, if it ever intends to put an end to this policy, will need to sack lawyers, not engineers.
"In-house counsel from IBM" was quoted the other day by Managing IP, which does yet more sponsored puff pieces (this one from Friday) for the litigation 'industry'. IBM has hardly changed its stance or its way. It's all rhetoric, marketing, soundbites and buzzwords. IBM is still a company of lawyers and it's a giant that pushes for secrecy and lousy software patents (by opposing 35 U.S.C. ۤ 101 and lobbying to water it down at the USPTO); remember that IBM also lobbies for software patents in Europe and falsely spoke 'for' "Open Source" (claiming that it had benefited from software patents -- clearly a deliberate lie).
"Sometimes they also tell us that "HEY HI" (or algorithms in that context) should be entitled to pursue patents -- in effect automatically-generated monopolies assigned to companies."And then there's all that proprietary nonsense like "Watson" and endless "HEY HI" (AI) nonsense. IBM isn't changing fast enough (if at all). We might note that a lot of the "HEY HI" media extravaganza was motivated by a patents gold rush. They try telling officials that "HEY HI" is so important and so innovative that "HEY HI" patents should be a priority and should be permitted. Sometimes they also tell us that "HEY HI" (or algorithms in that context) should be entitled to pursue patents -- in effect automatically-generated monopolies assigned to companies. It's as crazy as that sounds...
If the patent system is fast becoming a laughing stock, it's because of this "HEY HI" lunacy and the COVID-19 situation (patent offices try to spin it as 'proof' of patents' importance, but the public isn't gullible enough and it understands that the very opposite is true). If one looks at IBM's site, it's pretty much reducible to lots of "HEY HI" promises and brands like "Watson" (which they misuse the media to hail as some kind of marvel). They keep talking about COVID as if IBM is some kind of charity fighting for humanity.
Freshfields Bruckhaus Deringer LLP's Paul Abbott and Olga Sendetska have just written about this "HEY HI" hype (in relation to patents of course, as it has been a buzzword most exploited by patent maximalists) in Lexology and their site, which said:
For now at least, the “person skilled in the art” (PSA) is deemed to be a human (or team of humans), not a machine, despite having some machine-like characteristics – Jacob LJ’s oft quoted judgment in Rockwater v Technip describes the PSA as “a nerd” but “not a complete android”. However, the PSA may have the assistance of machines. The EPO’s Guidelines for Examination explain that the PSA is presumed to have “at his disposal the means and capacity for routine work and experimentation which are normal for the field of technology in question”. The factual question therefore is whether it was common to use AI in the relevant field at the time of the claimed invention.
In recent times, this may mean there is a gap between what the inventor had at their disposal (which might include, for example, quite advanced AI tools) and what the PSA is deemed to have (for example, only less sophisticated (or no) AI). Does that unfairly skew the system in favour of patent applicants? Or does it amount to a perfectly proper reward for those working at the cutting-edge of research using AI. We suggest the latter – there is no real distinction between this situation and the often-encountered situation of a well-funded laboratory making an invention by utilising equipment that has not yet become routinely available across the field.
This analysis works fine for AI-assisted inventions. But what about AI-generated inventions, in which the AI is fundamental to the core inventive concept? Assuming that patent protection should be permissible for such inventions, how can the traditional obviousness analysis be applied?
Artificial intelligence is a topic that is near and dear to this writer's heart, and something that has the potential to hugely impact the world of intellectual property law. Whether it is in relation to the possibility of copyright protection being afforded to copyright works by AI, or even inventions devised by the same, both the legislatures and judiciaries of the world will have to tackle these questions more deeply as the technology evolves and becomes more commonplace. However, recently many national governing bodies dealing with IP have handed down decisions relating to artificial intelligence and patents, which will undoubtedly shape the direction we will be heading.
First off, the USPTO handed down its decision in Re FlashPoint IP Ltd, where it had to consider whether AI can be an inventor under US law, and therefore could own patents for those inventions. The case concerned applications for a patent relating to devices and methods for attracting enhanced attention (Application No. 16/524,350), which was created by DABUS - an AI that was created by Stephen Thaler. DABUS was solely listed as the inventor for the invention in question (with Mr Thaler being listed as its representative and assignee for the rights). At first instance, the USPTO rejected the application due to a lack of an inventor, and Mr Thaler subsequently appealed the decision. The Commissioner of Patents then handed down its opinion earlier this Summer.