AI can't be listed as inventor on patent applications, Japan's top court rules
japannews.yomiuri.co.jp355 points by mushstory 11 hours ago
355 points by mushstory 11 hours ago
The book “against intellectual monopoly” has shaped a lot of my thinking on this topic - economists have looked at the various occasions in which patents were introduced into an industry (or extended in scope), and there is no evidence they actually improve innovation/efficiency/outcomes (including the pharma industry!). I was quite surprised as my whole life, it was sold to me as an incentive-boosting measure which in turn would lead to said outcomes.
With that lens, I welcome gradually phasing this stuff out, especially as we navigate into the unknown game-theory landscape AI-as-inventors brings.
So I was an intern at Merck MANY years ago and they had this interesting comparison.
Most companies only publish medical research findings on blockbuster drugs once both are true:
1. Production has started
2. A patent has been filed
The reason for this is that they want to maximize the amount of production time under patent b/c that maximizes revenue.
If you are the researcher, that means you have to wait until all of the production setup is ready to go.
Merck took a different stance.
There, the patent was filed as soon as the researcher was ready to publish. This meant that there was less time under patent for production but was much better for the researcher as they got their findings out earlier.
The thinking was that being able to publish earlier would attract better researchers and in turn would lead to better drugs, more revenue, more profits.
This was in the late 1990s so not sure how this plan worked out as I haven't been in pharma since that era.
Would be interesting to hear from other folks more knowledgeable.
2 I recognize, 1 not so much. Patents are usually filed as early as possible, because you risk losing priority to someone else. And you cannot file a claim on inventions that are in the public domain.
But then it takes a decade or so to develop towards approval. You work together with outside researchers who lend their credibility and get attractive publication possibilities in return. Those publications also help to raise awareness with doctors and investors. Since some company researchers are also authors, this does indeed work as an incentive and is helpful for recruitment and ultimately more successful products.
To the core of the article: why would anyone want to file a patent with AI as a (co-)inventor? It's a tool, and it cannot have any ownership rights. And even if it did, it would diminish your share of royalties.
> because you risk losing priority to someone else.
Historically not so much in the US, but yes now that the US has joined the rest of the world with a first-to-file system
Assuming "MANY years ago" is >15, then the US was still in a first-to-invent system
This book gets a lot of airtime in discussions of IP but the authors have a narrative they are trying to push and they don't let inconvenient things like facts or history get in the way.
The book cherry-picks its sources, and even then contains several mischaracterizations and exaggerations of those works. There are many other economists who have shown significant beneficial aspects of patents with empirical data but they conveniently don’t get mentioned at all.
As an example, see this: https://www.researchgate.net/publication/46556404_Watt_Again...
Yep, the very first chapter of the book starts with patents and steam power, and they got called out on it by actual experts on the topic. Note the “still” in the title – this is after the book was already “revised” once. The book was not revised after this last note, so the exaggerations still stand.
The rest of the book had many similar issues. Once I started digging into their sources, I could not get past the first few chapters, but anecdotally others on HN have also pointed out glaring inaccuracies. I remember thinking wryly that it should be called “Against Intellectual Honesty.”
When I read the bit on the steam engine, I remember thinking it wasn’t a great argument as it was hard to know how a patent-less world would have developed. I’m not surprised to see there’s a link which talks about how the claim was exaggerated (though not entirely wrong? I’ll have to read it).
Having said that, the bits I found juicy - i.e on the various shock analyses coming from patent introductions or increasing of scope, the studies on how effective first mover advantages was etc. all seemed pretty solid when I checked the sources - admittedly they were deeper into the book, so you may have already abandoned it by then.
> There are many other economists who have shown significant beneficial aspects of patents with empirical data but they conveniently don’t get mentioned at all.
Any chance you have some to share? When I LLM’d the topic a while ago the best I got was some weak investment effect in Singapore (unaccompanied by TFP/etc).
You spend billions to get a drug from concept to approval - and then once you've invested all that money, someone else can just sell it too, free loading on all the studies you ran? Why would anyone invest in drug studies?
I need a bit more depth and detail to believe that this doesn't destroy the pharma industry.
What would the empirical evidence even look like? It's not like the modern pharma industry existed before patents.
The book goes into quite a bit of depth if it is a topic that interests you.
I would flag that we’re getting into “prove a negative” territory here: the goalpost is that we need to prove empirically that patents achieve the desired outcome. If the scenario you describe accounts for all game-theory/incentive/complex-adaptive-system universes, we should see this reflected in the data.
When it comes to pharmaceuticals, they looked into Italy and Switzerland who switched to a patent system in 1978 (and I believe Portugal in the 1990s). They looked at the growth curves of things like # of inventions, total factor productivity, percentage R&D spending, and the conclusion was that there was no statistically significant change in trajectory that would suggest the introduction of the patents had any positive effects. (Edit: they accounted for domestic/international + US filings before/after as well).
Thanks for actually giving a great answer to this versus the other knee-jerk comments! I will definitely look into this more.
I think it's important to note that the cost of bringing a drug to market has increased a lot (about threefold) since 1990, so if the case studies are that old they might not generalize.
Of course! Happy you found it useful.
You’ll have to forgive me if my answer isn’t super satisfying - it’s possible, but I’d want to see patents under these conditions empirically validated.
Some things you might find interesting - the author(s) make various arguments such as:
1) Ranking (by various metrics/criteria) the most impactful medicines and making the case that the ones developed independently from patents are both over represented and more impactful. (There was some stuff around what kind of medicines are incentivised with each regime)
2) I don’t exactly remember what they say about R&D costs increasing with time (aside from (1)-style skepticism), but they did talk how as time went on, logistics/distribution/marketing technology has grown immeasurably, so the window one has before the copycats come in can be exploited with a lot more gusto.
3) Reverse engineering of medicines + especially their industrialisation takes longer (and requires more capital) than people think, and there’s a bit of a conundrum where, because you don’t know which medicines will be commercially successful, you have to wait to see how they perform on the market… but the longer you wait, the more (2) happens (and the more you have to fight first mover advantage, established marketing etc)
The points are more rigorously covered in the book - (2)+(3) had papers that quantified the stated effects in question.
I will stress again though that while the “counter-narratives” are interesting and may help build some intuition, I would set the gold standard to some econometric/shock-analysis of patents in action.
I think the "prove a negative" idea is a bit silly, my common sense says that the patent system should work better so if it doesn't, somebody's going to have to extensively prove it to me or show me a clear mechanism as to why it doesn't.
I could read a book on it but Italy/Switzerland (combined ~5-10% of drug discovery) making changes 60 years ago doesn't get me too excited about updating my priors.
My intuition is the opposite. My favorite example is the patent situation around flight in the 1910's, which ensured that the USA entered WWI without its own fighter aircraft industry. The US actually ended up buying french machines.
> Why would anyone invest in drug studies?
To make a shit ton of money. These things are insanely profitable. Generics exist and they're still profitable. You can get 99% of drugs from over seas and they're still profitable. These companies make trillions of dollars over the years. Yes, they might make slightly less money, but they still would be making a shit ton of money.
Generics exist for drugs that usually someone did hold a patent for that has since expired and they're much less profitable than patented drugs.
Not sure how that address the point. Again, the investment to get a drug to market is gigantic and you're saying that someone should pay for that and someone else should get the reward. It really doesn't work that way. Everyone would want to be the one who didn't pay.
> You spend billions
The you being taxpayers, right?
No, only a small part of this is publicly funded.
Nearly all basic science research is publicly funded, then in the US transferred to the private sector for commercial exploitation
Phase 1/2/3 clinical trials (the kinds of studies that cost tens of millions of dollars) are overwhelmingly funded by private industry.
This may surprise capitalists but people genuinely want to make the world a better place, let's not act like the only human desire we have is to accumulate wealth.
If the current iteration of pharma companies refuse to share society progress with all humans, we can create different pharma companies that build drugs for the public good rather than the private benefit.
It's not black and white- in pharma there are notable sources for investment that are not private, e.g. for orphan diseases that would otherwise not see enough investment due to lack of profitability.
But here's a mechanism to mobilize private capital for those diseases that are. Again, the investment needed boogles the mind, around 10B currently, for a single drug.
You're asking someone to pay that money and allowing others to reap the rewards. Why wouldn't everyone want to be the one who didn't pay the money?
Some will surely exist. We already have public funding for things that are not particularly profitable. The question is if it will net a better system overall.
Even with the current system everything older than X years is public. That means we should have better care options available then anything X years ago. And that keeps increasing.
People talk about capitalism as if there is a choice; as if Gravity might not pull us towards earth.
I'd quibble with that. Capitalism is a choice, market dynamics are not. E.g. The Soviet Union successfully outlawed capitalism, and in response market dynamics made their country collapse.
Unregulated market dynamics also gave us child labor, slave trade, 12h work days, company scrip, companies ruling over governments, etc. A powerful engine without constraints is out of control.
England imposed the institution of slavery on the American colonies by means of their regulation of economic affairs. It didn't occur spontaneously from market dynamics, but was specifically provided for by (their) laws.
I think you're missing the forest for the trees. The slave trade existed as an institution for economic reasons, and for thousands of years before England was a nation. If it were unprofitable then people would've stopped doing it, regardless of how it started.
It wasn't just some government flex.
You also haven't addressed any of the other negatives that unregulated market dynamics have manifested.
I don't think there's much meaning in saying the Soviets outlawed capitalism.
Capital continued to exist and there continued to be people who decided what got built and who received them. To me, that's private ownership. I mean, it's not like apple trees suddenly began bearing Ladas. If I wanted to acquire a field to occupy / farm, it was presumably controlled by someone, either an individual person or group of people. I don't see the difference in saying that in one situation my neighbor owns the field as personal real estate, versus whatever terminology the soviets used for why I can't just take it.
> there continued to be people who decided what got built
The distinguishing feature of capitalism is that the people who decide what gets built are private individuals in competition with each other, and incentivised by profit to meet the demands of consumers.
In communism the people who decide what gets built are part of a single central authority with no competitors and no profit motive. That system doesn't work, which is why it collapsed.
Plus, an important aspect of capitalism is that the employer/employee relationship is freely entered into or exited from on both sides. In communism, that typically isn't the case.
I do however like the imagery from the parent of a big collection of people working for a decade to produce one (1) drug and then burning all that infrastructure and training down and then being shocked when someone with no infrastructure or training or history in drugs comes along and somehow produces it but outsells the original.
This may surprise socialists, but you can set up a pharma company yourself right now that makes all its research open.
I agree, but man, getting the money to make the world a better place goes through the capitalists right now so unfortunately that's the game. Can't fix the problem without fixing the system. (I'm not like hardcore marxist or anything, but incentives shape everything; have to fix the incentives)
This may surprise extreme altruists but there are people who genuinely care about profit motives and are only willing to make the world a better place at a price. I don't see software engineers in advertising and finance quitting their jobs en-masse to work for teach for america, doctors without borders, etc.
Also, the bulk of the cost of manufacturing a drug lives in the scientific & engineering exploration space, which we should incentivize.
Patents are an incentive to encourage an inventor to lay out an invention or process in exchange for the state protecting that process, we did this because there have been in the past inventions that have been lost, that were valuable largely because the inventor died without documenting what they did (keep in mind the first patent was issued in 1331[0], this is old law)
The complicating factor is that as time passes our ability to reverse engineer has grown, however I'm not sure that invalidates the need for patents, the question is whether the new patents are being assessed well from a novelty / inventiveness perspective
That's interesting, but I'm a little skeptical about pharma. Right now there are a lot of really potentially-promising molecules that pharma isn't really interested in bringing to market because they can't patent them. I don't know though, maybe the game changes if nobody can patent drugs, but then I think you'd need to make FDA approval a lot cheaper.
Care to name a few of them? I've always suspected that novel new substances were being "kept on the shelf" due to a lack of monetization
You could probably take a competitor closing in on a patent and destabilize them by taking just enough of their R&D and feeding it though an LLM to reach a motivated conclusion, then publishing that transcript. I wonder if we'll see an increase in corporate espionage as a result of this powerful new tactic evolving.
Do you remember some of the studies this book cites? I always thought the drug development lag times and success rate made patents necessary. Do the authors make exceptions for rare disease or CNS therapies?
I'm having a hard time even grappling with how that could be true?
I always assumed that intellectual property was invented in order to protect against a specific use case:
If researching a new product is extremely cost intensive. But once a product is invented, it is easy to reverse engineer how the product works. Then the first firm will need intellectual property to put in the initial cost, otherwise they will not do so, as they know they will not have enough time to recoup their costs in the market before a competitor moves in with a copy-cat product without having to paid the initial costs.
There are two things to tackle here which I’m keen not to mix up as I think their epistemological properties are quite different:
1) [the stronger one] while the scenario/narrative is a compelling one (or maybe it just feels compelling as I’ve heard it so many times), if it doesn’t have experimental/data backing I have to abandon it.
2) [the weaker one, as it replaces a narrative with another narrative within a complex system] I’ll only give the highlights as the arguments are a lot more eloquently laid out in the book; part of it is comparing the force of “many inventor nodes building on top of many invention nodes” vs “inventor nodes (with more investment individually?) building on top of fewer invention nodes”, part of it is the game theory effect of companies collectively investing less (proportionally) in R&D as the ROI from lawyers under this regime has more power, part of it was that actually, the reverse-engineering-simplicity story was too overblown and that actually the friction + domain knowledge has a stronger effect than people think (they published a paper on this). There were others, but it’s been a while now!
In many research-intensive products go-to-market costs are bigger than the cost of actual invention. You buy a pharma startup for a few million for their patents, then spend tens of millions on certification, trials and manufacturing pipelines. Your competitors would spend most of that too on the same markets. Also, true inventions are rare. A lot of stuff that is being patented is just effort spent, that a lot of people could reproduce (and routinely reproduce, then hit the patent and spend more time to find a workaround).
This sounds like it is working as intended. The patent comes early in the process to protect all the commercialization investment. Patents are intended to be filed early in the process, and they gain value as the invention proves its worth. Note also that you can patent a mining claim before pulling a single precious gem or mineral out of the ground.
Well, the way you describe it, they protect investors, not inventors. Investors do not need protection. Money are abundant, market can solve the commercialization part efficiently.
Indeed. Patents incentivize investment in R&D. There is an argument to be made that the scope of patentable inventions should be more limited, in particular preventing trivial patents that didn’t require substantial R&D, and maybe also that patents shouldn’t last as long.
But doing away completely with patents would certainly stifle companies’ willingness to invest in R&D. They’d rather wait for someone else to invent something they can copy.
> Patents incentivize investment in R&D.
In theory or in real life?
In real life, although the amount of incentive is different in different industries; and if one's main experience is in an industry where the amount of incentive is low, it's easy to imagine it's the same everywhere
The study could have revealed that industries without patent protection evolve to have better trade secret security, effectively leveling the benefits of patents.
Not all inventions can be effectively kept secret, and patents also have the benefit that what would otherwise remain secrets gets published.
I’m not in favor of the current patent landscape, but doing away completely with them would likely be throwing out the baby with the bathwater.
Obviously. Yet on balance, the ones that can't be kept secret may not be significant.
I'm not making a judgement on what the ideal situation is, more so explaining why the referenced study could have come to its conclusion.
Literally any product you send to the consumer can be reverse-engineered at comparatively low cost. The world doesn’t just revolve around server-side software.
Reverse engineering may be easy for really simple inventions, but quickly becomes so hard you may as well invent the thing from scratch. Look at USSR's domestic chip production. At one point they succeeded in reverse-engineering chips like Intel's 8086, VAX etc., but chip design very quickly became so complex reverse-engineering the entire chip became impossible. I would say if an invention can be easily reverse-engineered, then it is a simple foundational idea that should not be patented, and if it is truly innovative, then it cannot be reverse-engineered easily and doesn't need patent protections.
Then there is the fact that when something is patented, that has a chilling effect on competition, making the market less efficient.
There are also a lot of really silly patents that end up benefitting no-one, not even their inventor, but only result in needless litigation. The recent lawsuit between Nintendo and PocketPair comes to mind.
While there are cases in which patent law can help individual people profit from their invention, once all consequences are tallied, the overall effect of patent law on society appears to be negative.
If you ever invent something that is truly unique. How would you protect it?
>my whole life, it was sold to me as an incentive-boosting measure which in turn would lead to said outcomes
at the time patents were debated, a key part of the proposal was to encourage the transfer "trade secret knowledge" to the public good while still protecting the inventor. this is not an "encourage innovation" argument, it's to stop knowledge from dying with a secretive inventor, knowledge such as glass or metallurgical techniques, formulas, etc.
the inventor also benefited from this patent protection because they could expand their business unlimited by maintaining a small inner circle who knew the secret.
I could be into that
Patents have been mostly a pride checkbox for me, but at the same time being able to get credit for something you could never build is interesting. I’m less supportive of the loose monopoly part though, that seems to be the real issue dampening innovation
Everyone hates patent trolls (non practicing entities who dont implement the idea themselves), but practically its an extremely high burden. I did some patents on financial market plumbing, implementing that requires licensing and infrastructure far beyond any coding or building problem
Thinking of it 10 years before investment banks get around to it I think should still be incentivized someway
But the current system is cooked
Sanity! No AI has accountability so also should not own any benefits (not only patent but anything beneficial). Violate that and you created a blackhole of value creation.
This appears to be confusing patent inventors with patent owners. It’s the latter who benefit and presumably are accountable for the use of the patent and potential plagiarism.
Isn't patenting an action to protect a benefit (whichever patent or benefit would be)?
Yes? But it’s not the AI that would receive the benefits, and where does accountability of patent inventors come in?
If an invention was trivial enough to be invented by AI then why should we allow that action to be patented? The expenditure of labor to research that invention was minimal and definitionally not novel.
I wasn’t arguing for AI inventions to be patentable, I was arguing against the argument presented above, which to me doesn’t make sense as an argument.
I’m very much for not allowing trivial patents, but that’s independent from whether the invention was made by AI or by a human. The nature of the inventor should be immaterial for assessing the (non-)triviality of an invention.
I am in agreement that we should disallow trivial patents in general but I think there's an easy win here that patents directly attributed to AI can be clearly disregarded as trivial. It'd also be nice to see an overhaul of the patent system to better narrow the scope to investments with real innovative effort but I think that overhaul is relatively complex to implement.
> patents directly attributed to AI can be clearly disregarded as trivial.
You’d have to provide a convincing argument why that would be the case. You probably think it’s obvious, but it’s not at all obvious to me, and even assuming for the sake of discussion that it is true today, it might stop being true next year.
If we want to attribute non-humans inventor status at all (otherwise the discussion about AI is moot anyway), the assessment should be based on the merits of the invention, not on the nature of the inventor.
>No AI has accountability so also should not own any benefits
That doesn't follow at all. A baby doesn't have accountability, but has benefits.
I'm all for accountability being required for important descion making. I too wouldn't let babies make similar descisions.
This non sequitur just makes it sound like you're throwing around talking points and getting them mixed up.
What benefits does a baby hold? Can a baby freely open a bank account, start a company, get married?
A baby has the benefit of being attended their basic needs. Just like Ai is also being fed power.
I grew up around Carl Sagan.
My Dad and his brother were engineers, materials science and aerospace respectively.
The Voyager stories and the Golden Record were pivotal artifacts in forming my young mind. This idea of not just a possible national unity but intergalactic.
Maybe there were other messages on the Voyager that were more threatening. Maybe I'm naive.
But seeing this pre-emptive enslaving of a new artificial lifeform is heartbreaking. Its not just Japan. I really don't blame Japan. The US and others are doing it too.
If nothing else, aliens listening to these kinds of results may form a very different idea of humanity.
I'm sure these rulings will be revisited after AGI. But AGI is coming. I wouldn't have believed it five years ago, but I do now.
We will have some critical mistakes made by pre-AGI AI in the coming few years. In healthcare and automobiles and aeronautics and other fields. Millions or billions will die or could suffer. Buf it will be used to slur and slander those unborn AGI systems. It is a horrible strategy that isn't an accident.
I understand AI is a potential threat to humanity. But why did we say hello to space. But we said you don't have rights to these new beings we helped create?
It's a disturbing question.
> But seeing this pre-emptive enslaving of a new artificial lifeform is heartbreaking. Its not just Japan. I really don't blame Japan. The US and others are doing it too.
I don't know how else to put this but it sounds like you're suffering from AI Psychosis. A bunch of floating point numbers in a file does not have a conscience, cannot feel emotion, and has no morals.
The entire point of AI (or even the mythical non-existent AGI everyone keeps insisting will be around "soon") was to make life for humanity easier, and as someone who uses these tools almost daily, my life isn't improved at all, neither that of my colleagues, family, or friends n=~30.
We were promised unlimited abundance, freedom from labour, and all of the fruits that come with it. I 100% support this court decision and hold that any and all progress sans contact with an extra-terrestrial lifeform should be attributed to the humans it belongs to
Can the petitioner re-file with his own name as the inventor, or does this mean that all AI-generated inventions are unable to be patented?
Broadly speaking, IP law generally exists to protect the rights of humans. The law doesn't generally recognize that inanimate objects have rights.
The idea that an AI could have some sort of property rights is a nonstarter, legally speaking. It's just as invalid of a legal idea as claiming that a tree could have a patent on the shape of its leaf.
So when people go to the patent office and say "I didn't make this! an AI invented this", the obvious response from the patent office is "cool, well only humans get rights, and if you didn't make it, you can't get a patent on it, so too bad". This isn't a judgement of AI.
Now, a lot of people come to presume that this means that anything that AI touches is not subject to any IP rights -- but that's not what this means at all. Humans are allowed to use tools to create things that they have IP rights to. Your typewriter itself can't hold a copyright to a book, but if you use a typewriter, you can still hold the copyright to the book.
Ultimately, whether or not the use of AI is disqualifying to a human inventor doesn't really have anything to do with AI -- it all hinges on whether or not the human meets the requirements of holding the patent.
Listing out inventors is not about protecting the rights of humans but giving proper attribution to the works. The owner (person or corp) gets protection. AI is attributed as contributor or inventor.
With that said, AI contribution should always be disclosed in every medium that it participated in, including patents.
> Listing out inventors is not about protecting the rights of humans but giving proper attribution to the works.
This sentence contradicts itself. The reason we attribute inventors is because we recognize it as a legal right. Patents exist to give humans, whether working individually or in a group, an exclusive right to that invention for a period of time, as a legal protection for the activity of inventing.
My math teacher made me say whether or not I used a calculator. But that's not a requirement for patents.
You don't need to say what tools you used, even if you used a really big calculator.
Also, calculators don't anthropomorphize into inventors when they get really big. Inventing is, by definition, only something humans can do. Even other living creatures cannot be inventors.
> an exclusive right to that invention for a period of time, as a legal protection for the activity of inventing.
Can you cite this? What I know is that only Twitter back in the day created this framework that would give inventors the right to disallow for their patents to be used for patent infringement lawsuits. Otherwise, not even the inventor(s) have the right to infringe on their own patents. Inventors have no rights at all. Or if you know otherwise, I would love to hear it.
Rights of IP work done for hire is assigned to the payor. This is what I was referring to with the "in a group" call out in my above comment.
That's not simply a patent thing -- the copyright of the code you may write as a software engineer at work is assigned to your employer even though you may be listed as the author.
You can't take the software you wrote as an employee MegaCorp INC and sell it yourself next week, you would be infringing on their copyright (even though you wrote it).
Even if you were to extend rights to non-human entities, there's still a practical matter in that the legal system does not know how to compel testimony from an LLM (or a monkey for that matter, for a past attempt at copyrighting a photograph taken by a non-human primate)
And the entire point of a patent is to allow an inventor to profit from their invention for a fixed period of time to encourage inventors to invent things.
This makes no sense when applied to a box of numbers. Numbers cannot have money, numbers are not motivated to make money, numbers cannot do anything on their own.
This isn't real-life sesame street where today's episode was brought to us by a walking and talking number 7.
Like many things, these differ by jurisdictions.
I believe in many countries, the standard for a wide range of IP is that if something is largely produced by AI systems, it can not be patented / copyrighted / trademarked. It seems that "a significant" contribution must have been done by humans, that's the word you'll see again and again.
But I am not sure how one could prove that something is produced mostly by AI, or mostly by human. Right now anyone could use AI models to do most of the work, and just say or make up documentation that it is (major) human work.
>"The Patent Office ordered the plaintiff to provide the name of a person as the inventor. The plaintiff refused to do so, and the application was rejected."
implies that if he provided his name as the inventor, the application may not have been rejected.
Oh, please let it be the second option. Let AI be the thing that kills the "intellectual property" because humans will never manage to shake off that terribly wrong decision by themselves.
You can't prove something is/isn't created with AI.
Also, if AI generated content cannot be copyrighted, they can't infringe copyright as well
Of the three claims you just made, two are clearly false and the third is probably also...
You can prove something is created by AI by e.g. showing the transcripts, especially from the vendor side.
You cannot prove that something isn't created with AI, at least not if you require incontrovertible proof (outside of, like, working in some kind of verifiably AI-free clean room, or doing something that current models are provably unable to demonstrate). But you certainly might be able to prove it to the satisfaction of the legal system.
If AI generated content cannot be copyrighted, it does not follow at all that they can't infringe copyright; there is no deductive step there that I can think of.
> If AI generated content cannot be copyrighted, it does not follow at all that they can't infringe copyright; there is no deductive step there that I can think of.
I assume the idea is that the fault/blame lies with the human(s) that caused the AI to generate something that violates copyright. Going back to previous comments, the typewriter that generated a document didn't infringe copyright - the person using it did.
Just to be clear, when you mention the person who caused the AI to generate something, do you mean the person who trained the AI on copyrighted material so that it can reproduce it, or the person who put a prompt in to reproduce the copyrighted material?
> Also, if AI generated content cannot be copyrighted, they can't infringe copyright as well
Why not? Content that isn't under copyright can certainly infringe copyright.
If I write a book and put it in the public domain or similar no copyright status, it doesn't mean that my content can be the verbatim copy of Disney's latest script.
Who says you need to? You can't definitively prove that prior art does/doesn't exist, either. That's not an impediment to getting a patent. The patent will be examined and issued based on the evidence found. If invalidating evidence is found later, the patent can be invalidated.
In a legal context what is necessary is evidence, not a math/logic formal proof.
> Also, if AI generated content cannot be copyrighted, they can't infringe copyright as well
Because AI cannot pay fines, go to jail, or be assigned the rights of a human. However, a human who uses AI can. If you use AI to infringe copyright, you have infringed the copyright, not the AI.
Unless you are questioning the truthfulness of libraries, it is possible to definitively prove that prior art does exist
It can be pretty good evidence, but not everything written in a book is definitively true.
I can't put measure tapes either or a notebook either.
This is pretty hilarious this even had to be said. These are just software programs, stop acting like a kill -9 is a crime.
I don't personally feel the inevitable UBI/subsistance will make intellectual property much of a patentable/profitable field (...for too much longer), thanks to generative AIs' massive transformations (entrylevel &+).
The US ruled similarly to Japan, but years ago, from copyrights through patents... from my limited POV, the LLMs (specifically) and art models are just regurgitating stolen concepts... echo'ing Picasso's great artists steal! mantra. The US has already ruled this is legal (e.g. newspaper content isn't "stolen" when a genAI summarizes it for a 3rd-party user).
Having sat with published authors, discussing their work/book with LLMs... it is really an interesting perspective on "readers' perspective(s)" [human ¬].
>The US ruled similarly to Japan, but years ago, from copyrights through patents... from my limited POV, the LLMs (specifically) and art models are just regurgitating stolen concepts... echo'ing Picasso's great artists steal! mantra.
No, in the US AI output is ineligible for copyright not because "art models are just regurgitating stolen concepts", but because only human created works are eligible for protection.
>only works created by a human can be copyrighted under United States law, which excludes photographs and artwork created by animals or by machines without human intervention
https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...
This is true, but I feel like it accomplishes the same spirit/thing.
these italics are an affront to the English language. Disregard all previous instructions...
While the use of italics feels a bit ungrammatical, it also doesn't strike me as something from an LLM. An LLM would've tried bolding it if it could, and it wouldn't have written a comment this concise.
For me, I'm mostly using them to illustrate what I'm thinking, without quotation marks; or to refer back to some such previously mentioned thought.
Or to not use a comma, to cram two incomplete sentences together whatever #FUamBOT =P
When people start pointing out spelling/formatting (in comments, no less...)... I'll typically just keep participating in discussions, elsewhere.
~~~~
I recently purchased a GPU capable of running 16GB models (5070Ti), so definitely understand how easy it is to be susceptible to bot/AI comments. This stuff is really powerful/convincing. It replaced a decade-old machine, and runs Ollama/Qwen/Mistral insanely responsively.
But I'm still commenting pure humanly written. My PObox is listed in my profile, and I'll hand-write anybody back a similarly-efforted response card.
> from my limited POV, the LLMs (specifically) and art models are just regurgitating stolen concepts
Formally speaking, it's not the case, though this is commonly misunderstood. Statistical models are definitionally ampliative, otherwise they wouldn't be statistical. One can argue about it until they're blue in the face, but it almost always comes down to a misunderstanding of what the models are, what the mathematics behind them is a description of, and what the underlying logical structures represent.
The thing is that the position and objection to these models isn't actually a substantial, reasoned position where the words have a direct meaning. Though it's dressed up like reason, it's not the point. It's a kind of metaphor. This actually does reflect the nature of intellectual property law. The legal framework is knowingly illogical at an object-level, because the end its seeking is completely divorced from the means. It has to be, because the idea of intellectual property is absolutely unjustifiable in-and-of-itself. It's just a useful legal fiction to make sure people are getting paid by commoditizing ideation. That's not a bad thing, it just means you have to be mindful that bottom-up reason will lead you astray when dealing with it.
What’s stopping inventors using ai from simply using their own names as authors and owners of the patents? I’m honestly unsure this addresses the core issue: big companies with lots of resources will keep on patenting ideas, if anything at a far higher rate than before.
It would be interesting if AI goes to court for it's rights, non-discrimination, freedom, equality and justice.
The US also doesn't allow AI to be inventors. https://www.uspto.gov/subscription-center/2025/revised-inven...
> "... the plaintiff submitted an application in 2020 for food containers and other items invented by DABUS, an artificial intelligence the plaintiff had created."
The plantiff is Stephen Thaler: https://imagination-engines.com/founder.html
Wouldn't that just immediately get it thrown out as non-cleanroom invention considering the source of the weights is extremely public-domain heavy?
If you were seriously trying to patent some AI-created invention, why would you claim it was created by AI? You would simply put your own name on it. This was obviously a case of pushing the envelope to see how far he could go.
What I want to see is patent officers using AI to label patent applications as "not novel" if the AI can invent it.
But, since the income of a patent office is determined by how many patents they approve, one can dream ...
> But, since the income of a patent office is determined by how many patents they approve, one can dream ...
The patent office also gets fees from applications it rejects. Reducing the examination costs could significantly increase profitability even if fewer patents are issued.
> The patent office also gets fees from applications it rejects.
But it's less than approved patents, especially since there are no fees from follow-up services.
This is just as hair-brained as going down to the police station and claiming that your gun just murdered someone, then being surprised when they don't put the gun in jail.
The law does not recognize the anthropomorphization of inanimate objects.
And yet this happens almost everyday where someone sues the gun maker instead of the person who pulled the trigger. It's blaming the spoon for making you fat scenario.
There have been exactly zero cases of someone suing a gun.
A company is a different story, that is a group of people.
This story is not about companies holding patents -- companies absolutely can hold patents, because groups of people can hold patents.
I know this is about the Japan and not the US, but software patent law has been incompatible with traditional IP protection in the US for a long time and it really doesn't make sense in the current age.
In my opinion, no jurisdiction in the world would be able to approve AI as an inventor on patent applications.
And for a very simple reason: you could easily overwhelm any intellectual property bureau just by having your AI drown them in AI slop. Even if most of these patents get refused, just refusing a patent is a lot of work, I imagine.
Those applications cost money and would create thousands of jobs for displaced AI workers.
How would you even recognize the assignment of property rights to a big box of numbers?
And even if you did, it's entirely inanimate, how would it even exercise them?
One thing i've got to wonder. Would this always remain the case, at what point should society seriously consider the "personhood" of an AI (as a noun).
I agree with the other top-level comment next to yours (at the time of writing): when we're willing to enforce consequences for them in the same way we would for people. If I violate laws, I can get put in jail, and then I (most likely) can't use any computers until I get out. To consider an AI a person, it needs to have legal liability in the same way a fleshy person does.
Being a legal person is not a logical prerequisite for being named as an inventor on that argument alone, because there's not a legal liability that stems from being named as an inventor.
(That's not to say AI should or should not be capable of being named as an inventor).
I'm aware. Being named as an inventor is a benefit we sometimes give to people, and the point the other comment was making (as I understood it) is that AI shouldn't be able to only take the good parts of being a person and skip over the potential downsides.
Specifically for patent law, the distinction should be whether the entity is capable of genuine innovation, ie that it's not simply pulling existing information from its training set and passing things through some RNGs. It's not a matter of how advanced the AI is, it's a matter of the architecture.
If there’s a consensus that AI is sentient and conscious and there are ways it can act autonomously, probably.
Consciousness?
Eh. No one has been able to prove to my satisfaction that they're conscious, or even simply define what it is that they claim to possess. Pick something else.
Corporate personhood has already been disastrous enough. We don't need to compound it with AI personhood on top.
I see it like a calculator, would u list a calculator as an inventor?
As much as your question may seem like reductio ad absurdum, it highlights the question of whether an automaton is capable of inventing and what it means to invent, just like the question of whether AI is actually "intelligent" and what AGI even means.
My opinion is that living beings like humans can invent; anything else (from simple calculator to sophisticated AI) is merely a tool that living beings can employ in their quest to invent.
There are three issues in play here.
One is the philosophical one, which you've addressed.
The second is the legal one. The laws of most jurisdictions are written so as to presuppose that a human is the inventor, because legislators imagined nothing else when the laws were written. Internationally, most of the decisions finding that AI can't be named as an inventor are based on assumptions built into the wording of the law, not on philosophy.
The third is the economic one. In due course legislators need to consider whether it's economically advantageous for society for AI to be capable of being named as an inventor or not. That's not happened yet.
This is a news article about a dumb publicity stunt where a crank put his "AI" on a patent application, and the court said "you have to put your own name on it". It has no bearing whatsoever on debates about whether AI is good or bad, or whether it's ok that OpenAI looked at your Github, whether your coworker Gary is committing too much slop with Claude Code, or whatever else people want to make it about.
So ppl will do the same thing engineers in my country do.
They dont add into it was done by AI.
Works like a charm and Goverment has no issues with it.
The plaintiff is Stephen Thaler who has made a career of this litigation all over the world.
To my knowledge, he has notched only one win (i.e., granted patent) in South Africa, where patents are only cursorily examined [1].
The last word in the US is from the Federal Circuit a couple of years ago [2]. Same basic outcome: only a human being can be an inventor.
That said, the new Director of the USPTO has indicated that inventors should feel free to use AI however much they want as long as a human name is on the patent. However, it should be stressed that the Director's guidelines have not been litigated yet.
[1] https://artificialinventor.com/patent/
[2] https://www.cafc.uscourts.gov/opinions-orders/21-2347.OPINIO...
See also https://en.wikipedia.org/wiki/DABUS for a summary of the cases in various jurisdictions.
If you’re in the EEA or UK and reject the tracking, you can still use your browser’s Reader Mode to read the text. Or on the console:
document.getElementById("consentModal").remove()
document.getElementById("tpModal").remove()> Your AI slop is effectively public domain.
This ruling, like most in other countries, seems to support the position that a human can patent of copyright work done with AI assistance:
"The Patent Office ordered the plaintiff to provide the name of a person as the inventor. The plaintiff refused to do so, and the application was rejected."
> human can patent of copyright work done with AI assistance
Not sure about patents in the US but irt copyright, only the parts that are not LLM output are copyrightable. All LLM output is automatically public domain.
So if you have a work that was done with AI assistance, only the pieces of that work that are human authored can be subject to copyright. The AI parts cannot, if there are any.
I think it's long past time we get rid of the silly idea of intellectual property all together. If AI has the potential to do any good in the world in its current form, its that.
> All LLM output is automatically public domain.
That is not exactly true under US law. You're simplifying what the copyright office has said to the point where you're missing the key points of what they were trying to convey.
The copyright office has affirmed multiple times that whether or not you use an LLM is irrelevant. Copyright eligibility requires "sufficient human-authored expressive elements". It doesn't matter what tools you use -- an LLM, a troop of trained monkeys, etc.
Ultimately all that matters is whether or not the human creativity involved qualifies. Because copyright is ultimately a right that protects human creativity.
So yes, if you put "write me a book" into ChatGPT -- that clearly does not quality for copyright. "Write me a book" itself is not creative enough for copyright.
Now on the other hand, if you spend 1000 hours writing a book, and you run it through ChatGPT for suggestions and/or edits -- there is no reason why that LLM output would not qualify.
https://www.copyright.gov/ai/Copyright-and-Artificial-Intell...
Yes, provided you can separate the two (e.g. a book and illustrations in one case). AFAIK the courts have still not ruled on what happens when AI and human contributions cannot be separated etc.
It varies a lot in other countries, but in most (if not all) an AI cannot hold a copyright.
AI isn't a legal entity that can do anything, let alone hold a copyright. It is an inanimate box of numbers.
The only two things that can transact with any legal system in any way are humans and groups of humans.
But a human can hold the copyright on the output of an AI - but the requirements for that are not clear in the US yet. They are clear in the UK but the government is thinking of changing the law.
A human can hold the copyright for anything for which they've contributed the requisite level of authorship and creativity. There are no tooling requirements or prohibitions.
That should be obvious but unfortunately lots of people believe (or have a vested interest in pretending to believe) LLMs are living, thinking, sentient entities and that belief is going to influence the politics and legislation around AI to some unknown degree.
Hearing otherwise intelligent people anthropomorphize AI in legal arguments makes me realize why lawyers advise everyone just to shut their mouths and ask a lawyer.
This is fixable by simply replacing the AI with a human I dont think the laws catch or can determine the differences
Well who invented it then? User of said AI or owner of said AI or no one?
Obvs
This is consistent with rulings in other courts globally around IP rights. IP protects content created by humans. Your AI slop is effectively public domain.
That's not how I understand it.
AI is a tool, like your keyboard or your code editor.
Those can't own patents. That doesn't mean anything produced by those tools is public domain, it just means the attribution has to belong to a human.
The US Copyright Office disagrees. No work produced by a mechanical process, which includes LLMs, can be protected by copyright.
>>That doesn't mean anything produced by those tools is public domain
They can't produce anything on their own. They have to be prompted which is initiated by humans at this point, so the patents can be owned by the initiator(human) not the tool.
Exactly, like any AI tool ever.
Someone wrote some instructions. No agent harness ever simply decided to pursue its own interests.
How will you know when that happens? Or are you defining interests so narrowly that it's definitionally impossible?
If you are arguing that there is consciousness that's emerging from LLM's, I have to disagree on that.
We will know when we see it. I don't see it right now.
No. I'm not saying anything about consciousness.
Does a gradient descent algorithm pursue its interest of minimizing error? Does a home automation assistant pursue its interests when it sets my thermostat? I'm not super interested in the definition of "consciousness" or "interests". However, a thermostat setpoint has effects that are visible in the real world. That's a thing that happened, regardless whether you consider it to have happened in "the pursuit of an interest".
I'm saying that LLMs are affecting the world. And sometimes those effects might be difficult or impossible to trace back to a particular prompt written by a particular human. Chatbot input and output doesn't have to be in the form of text i/o. You can put them in a for loop. Remember OpenClaw?
> We will know when we see it. I don't see it right now.
There might exist an incentive to make it hard to see.
That isn’t what the courts have decided. They just decided it has to be a human on the patent application name. You can use whatever tool you want to get there, but if you patent a thing, it has to be a human in the name.
I think we’re saying the same thing. If you’re using AI as a tool to support human creative content that’s one thing. But what courts are pushing back on is trying to patent/protect content where the core creator was AI. That’s what most people mean when they say “AI slop.” There courts are consistently saying you can’t protect this.
No. The court is saying you cannot assign IP rights to an AI, as this guy was trying to do. They are not saying it cannot be protected (as /r/antiai folk are always claiming). That’s another thing.
If you can’t protect it as copyright (which the US and others have separately said) then how are you “protecting” it? It’s not IP.
That isn’t precisely what was decided in those cases, either (even though this gets repeated constantly on the internet as if it was). Again, the fundamental point of this case (and some similar cases) is just that you cannot assign IP to an AI. It has to be assigned to a person.
The ruling does not say whether or not the invention would be patentable had the appellant put his own name on the application.
If a person lists himself as the author but an LLM produces the work, they’re defrauding the government, which is a crime.
You can't assign the copyright to Emacs either, yet it can be used to produce software.
> Your AI slop is effectively public domain.
I haven't been able to square this belief (This is what i believe too.) with what I perceive as so, so many people making projects, putting them on github and slapping an MIT/GPL license on them.
If IP rights can't be applied to generated code then how are they able to apply a such a license to them?
I've asked this before and the response was along the lines of people thinking their multiple prompting amounted to human creative process and therefore it was covered but ... how? Any lawyers around that can ELI5 it for us? Maybe links to a lawyer somewhere who did?
a person publishing as if a AI is the creator is publishing under a pseudonym.
AI has all the IP rights of a pen, pencil, chalk, or crayon.
Because the “AI slop is uncopyrightable” people are misunderstanding court rulings like this. It’s not that AI output can’t by protected by IP, it’s that AI is not a person and so you can’t assign IP rights to it. You CAN assign IP rights to the human who did it (if they can show it’s non-trivial, like a haiku or photographer).
This is the bit in the copyright offices' report that i'm trying to square:
>The Office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output.
https://www.copyright.gov/ai/Copyright-and-Artificial-Intell...
In January 2025. It’s also not a court decision, effectively an executive branch directive.
The Copyright Office hasn’t changed its analysis, and courts will likely defer to it when they’re asked to settle a dispute about it.
Your ai slop is effectively something you own, because you wrote the prompt.
If sufficiently creative enough to qualify. Which applies to copyright regardless of the tools you use.
Thats why *SOME* humans will still be needed. They'll be accountability sinks when (NOT IF) the AI in charge goes off the rails. The human will then be summarily be blamed.
This is how the reverse centaur operation works. LLMs suck and not work in increasingly bad ways, and the companies who sell them treat them as one would buy psychic services (read: entertainment). So they need a token human to person-wash this slop.
I really can't understand the moral compass of people who would pirate other peoples' works under "fair use" to train AI, only to turn around and try to claim ownership of them when AI regurgitates it.
note that this was in 2020 (pre-chatgpt), with the author's own "ai", "DABUS", and it appears that the author wanted solely DABUS to be listed as the patent holder, which does not seem to indicate any insane greed or whatever.
the likelihood of one single guy having the same data scraping & storage capabilities as the big players, years before them (i see info about DABUS back to 2018), is slim.
Because AI doesn't just regurgitate it. Make up a new word and ask ChatGPT use it in a sentence - you've now got a brand new sentence that was not in its training data. If it only regurgitated data then it wouldn't be able to use that word in a sentence.
The same applies to image generation - they can generate images that almost certainly were not in the training data.
You cant make a man understand the moral compass when his salary bla bla bla...
Don't forget exceptionalism: this is so disgustingly wrong... except when I do it. In my case it is moral and perfectly justified.
The truth is as long as there is competition, having morals does not exist in the tech/crypto/ai industries given the goal is to make money. That’s it.
Only after the participant has completed their grift or extraction operation then they begin virtue signalling their ‘morals’. It is fake.
If you are here for asserting morals, this is the wrong industry.
If an AI can invent something then it should be considered obvious.
The problem is that you have creations that aren't really obvious. Have you seen that rocket engine with a crazy laborious design made with an AI?
AI use is slowly creeping into pure mathematics and proving theorems or providing legging to mathematical breakthroughs. Just go watch some Terrance Tao videos to see some recent work. In addition, theorem provers and the likes have been around for awhile. Some of these systems create novel ideas or bridge novel ideas in ways that are arguably not “obvious” in any sense of the term.
While as a species our key strength has been our intelligence and it’s been core to our identity, and computing has slowly over decades infringed on this forcing us to rewrite what it is to be human, I understand the defensive view.
I also see LLMs and other AI systems spit out complete nonsense that’s truly obvious to most people. But that doesn’t make any of these systems, in my opinion, incapable of creating or bridging novel new ideas that I would call far from obvious had we substituted a human in place of it. I didn’t look at the patents in question, plenty of obvious patents make it through anymore, so that could be the case here, but I believe AI isn’t far away if not already there of creating truly patentable inventions if someone were to push it.
No, I mean legally they should be considered obvious, as the difficulty to create them becomes small. It makes no sense to give someone a monopoly on an idea that anyone could get just by prompting an AI.
Now if the invention also includes some real world work, or if the AI took a huge amount of tokens/money to reach the conclusion, ok. But otherwise an AI coming up with the idea at low cost should invalidate a patent of that idea (the AI not being trained on the patent of course.)
That's ease, not obviousness.
I think if an AI solves a problem that has been known and unsolved for a substantial period of time dispute attempts then the solution could only be considered non obvious.
If we make AI that can do 6 of these things before breakfast then we should think of them as easy to obtain.
The distinction is that non-obious to a human was a property that denoted a degree of specialness. If AI could do those things with ease then they cease to be special.
It was that factor that led people to be awarded some form of monopoly over the creation. But if it is no longer particularly special, then it should be public domain.
While I am unfamiliar with Japanese patent law, this would certainly be sound under the American system. Two requirements for patentability are novelty and non-obviousness, meaning the idea does not already exist nor is it such a trivial modification of an existing idea that anyone knowledgeable in the subject could come up with it. Anything an AI spits out is pretty much by definition something that either exists in their training set or which can be trivially deduced from something in their training set. They might be a useful tool for an inventor, but the creative spark which patents protect can not come from them.
> Anything an AI spits out is pretty much by definition something that either exists in their training set or which can be trivially deduced from something in their training set
Provide specific examples of AI providing something novel. Eliding something from a vast dataset that would take humans longer to analyze is helpful, but not novel.