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Op-Ed

Legal fiction

October 11, 2021

An oddly modest inventor wants to give credit for an invention to his invention. Legal fiction has taken an unexpected twist.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

Here’s one for your collection of missed issues. Check out a recent article published by JDSupra.com in which a lawyer wrote about whether an artificial intelligence program could be awarded a patent. This came up because a real person applied for the patent on behalf of the AI.

The answer, in case you’re wondering, is no, at least according to a federal judge.

Fair enough. But here’s the issue that’s completely missing from this piece: why the heck would a human want to get a patent for an AI? Is this person being controlled by the AI? Was this person actually a human?

The alleged human — represented by a law firm — even went so far as to file suit in federal court. The “nature of the action” in the complaint begins with this: “Plaintiff is in the business of developing and applying advanced artificial intelligence (AI) systems that are capable of generating patentable output under conditions in which no natural person traditionally meets inventorship criteria.”

This is a fascinating proximate cause issue. Is the inventor of the inventor the inventor? If the guy created a Transformer that smashed a building, wouldn’t he be liable? Or is an AI creator more like a human who isn’t responsible if their child becomes a mass murderer?

Either way, I still don’t understand why the guy wouldn’t want the patent for himself. It’s a weird sort of modesty.

Here’s another interesting passage from the complaint: “Defendants’ position is anti-intellectual property and anti-business, and it puts American businesses at an international disadvantage compared to businesses in jurisdictions that will choose to grant patents on AI-generated inventions.”

Who are these jurisdictions and are they run by AIs?

I’m trying (but not succeeding) in getting my mind around the concept of a corporation — which is legally treated like a human but isn’t one — employing an AI that someone thinks should be treated as human but isn’t.

The complaint says that AI-generated inventions will “enter the public domain once disclosed” if AIs can’t get patents.

A new era of technological progress is upon us.

In case you’re wondering, the inventions the AI came up with are a flashing light beacon and “a beverage container based on fractal geometry.”

Maybe we shouldn’t be worried about this.

Custody dispute. Oranges are different from apples, but are dogs different from children?

Imagine a child custody dispute in which the husband disputed a regular visitation schedule because he didn’t want to repeatedly see the mother other than when it was convenient for him.

Now imagine a dog custody dispute in which the husband said the same thing.

Yes, we have a court ruling in which the husband said exactly that. It’s from a Washington Court of Appeals judge who overruled a trial judge’s order allowing dog visitation. For the moment, dogs in Washington are just property.

Someone needs to represent the interests of the dogs.

I’m expecting appeals.

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