ARTIFICIAL INTELLIGENCE (AI

– The Stuff of Star Wars or How the World is Truly Advancing?

/ By Andre van der Merwe, member & director Cirrus AI , B Sc B Proc LL B SAIIPL Fellow – Patent and IP Attorney /

Interestingly, USA President Abraham Lincoln had once said of US patent law that “it added the fuel of interest to the fire of genius.”

In present times, AI and AI-related

innovations and creations seem to epitomise “the fire of genius” - as mentioned by Abraham Lincoln. AI was once dismissed as belonging to the realm of science fiction, but it certainly is very real, although it does not often feature in the daily news. In fact, the world appears to be on doorstep of an AI-era, with AI being one of the most important technologies of our time. In support of this, Google CEO Sundar Pichai has compared the impact of AI on the world to “the discovery of fire and electricity.” In similar vein, Microsoft CEO Dave Coplin has said that AI is “the most important technology that anyone on the planet is working on today.”

In practical terms and for those not familiar with AI, this can be generated only by an ultra-powerful computer system having a massive computing facility (-the hardware being very costly and highly sophisticated), having access to extensive data-banks, being operated by highly skilled personnel (such as software developers/ mathematicians/scientists/engineers), and by using advanced algorithms in the software.

Unfortunately to date the lack of resources and capabilities in this field have largely excluded Africa and third world countries from developing and accessing AI locally. Hence the third world is rapidly falling behind the rest of the world especially in the field of technology and business innovation and development. In South Africa, spite of various shortcomings, the Council for Scientific and Industrial Research (CSIR) both on its own and in collaboration with certain local universities have conducted research inter alia in respect of information and communication technologies, with AI showing some development and growth during the last 15 or so years. See the article by A Ferrein and T Meyer entitled “A brief overview of AI in South Africa” in the magazine Worldwide AI (2012). However, to date it does not appear that much significant practical innovation has emerged from this work - although the author hereof is aware of an instantaneous translation system used at the North-West University (and developed in collaboration with the CSIR), which provides its under-graduate students with lectures simultaneously in three official languages namely English, Afrikaans and Setswana.

Two interesting and thought-provoking short articles on AI were published in the December 2019 edition (Vol 4 Issue 6) of the NewsBriefs publication of the South African Institute of Intellectual Property Law (SAIIPL). The first article was written by Mr Stephen Middleton and focused on AI-generated inventions, and the requirements and problems (such as inventorship) surrounding these inventions and the patenting of such inventions. For those persons who thought that AI-related innovations were limited to the field of technology, the second article by Mr John Foster would have been a surprise because it focused on AI-created works of a copyright nature such as literary works, musical works, artistic works, and sound recordings. In discussing the issue of authorship, the general question was posed whether or not human involvement in the creation of such works is a requirement for the existence of copyright protection.

Reverting to the field of technology, of course it always advances more rapidly than the law, especially the law that protects such technology, and this disparity will certainly challenge the fundamentals of the world’s patent and IP legal systems in respect of AI and AI-related developments.

This article presents a brief overview of AI and its challenges to the patent system of the USA - and by implication to the patent systems of other countries including but certainly not limited to the EU and its countries, the UK, and South Africa – based on a publication by the World Economic Forum issued during 2018 and referenced below.

How is the World Approaching AI?

In 2017 the European Parliament had adopted a resolution and recommendations to the Commission regarding Civil Law Rules on Robotics, and also in 2017 the China State

Council had issued its New Generation of Artificial Intelligence Development Plan. These documents discussed the interactivity between AI and the separate IP legal system of each of the EU and China, respectively. To date, although the Obama administration had issued three reports on AI, the USA has not to date, to the knowledge of the present author, issued a comprehensive discussion document that deals with the interaction of AI and AI-derived innovation, on the one hand, and the US patent system, on the other hand.

Against this background, in 2018 the World Economic Forum (hereinafter “the WEF”), from its Centre for the Fourth Industrial Revolution, published a comprehensively researched and interesting White Paper entitled “Artificial Intelligence Collides with Patent Law.” (hereinafter “the WEF White Paper”). Readers hereof are referred to the WEF website for the full text of the WEF White Paper which deals in detail with AI and AI-derived innovation and their interaction with US patent law. The views expressed in the WEF White Paper are those of the (four) authors and do not necessarily express the views of the WEF, or its Members and Partners but such White Papers by the WEF describe research in progress by the authors and others, and are published to elicit comments and further debate.

The WEF White Paper – Developments in AI

Background and overview of technological advances – Historically, the English mathematician Alan Turing had introduced AI as a theoretical concept in a paper he had published in 1950. Following that, in 1956 the American computer scientist John McCarthy had accepted and coined the term “artificial intelligence” at a scientific conference in the USA.

However, since then no universal definition of AI has been accepted by persons active in this field. It has variously been defined broadly as a computerised system exhibiting behaviour commonly thought of as requiring intelligence – and also as being a system capable of rationally solving complex problems or taking appropriate action to achieve its goals in real-world circumstances. AI is sometimes described based on its problem space such as logical reasoning, knowledge representation, planning, navigation, natural language processing (NLP) and perception, or sometimes on its overlapping sub-fields, including machine learning (ML), deep learning, artificial neural networks, expert systems and robotics. AI is also sometimes categorised based on its intelligence level eg artificial general intelligence (AGI) - a level of intelligence comparable to that of the human mind – or narrow AI that is the form of AI generally seen today that focusses on solving specific tasks.

AI’s technological progress has accelerated in the last twenty years based on advances in ML algorithms, massive growth in the availability of data, and improved and cheaper computing power. This progress, especially in the last ten years, has led to AI being used to “perform activities which used to be typically and exclusively human” and to develop “certain autonomous and cognitive features for example the ability to learn from experience and take quasi-independent decisions.” Although we do not see much of this in the public realm in South Africa, AI is now revolutionising the way people live, work, learn, discover, innovate and communicate – and placing the world on the threshold of a new and exciting era where the outcomes of AI are set to unleash a new industrial revolution.

In the 2nd Obama report (2016), it was stated that the current wave of progress and enthusiasm for AI began around 2010, driven by three factors that built upon each other namely: the availability of big data from sources including e-commerce, businesses, social media, science and government; which produced raw material for dramatically improved machine learning approaches and algorithms; which in turn relied on the capabilities of more powerful computers.”

The WEF White Paper reports that global investment in AI has been growing rapidly, with up to $39b being invested in AI development by companies in 2016, including up to $30b by tech giants (and up to $9b by start-ups). This represents a 3 times growth level since 2013. Global revenue in cognitive systems and AI was expected to grow from almost $8b in 2016 to more than $47b in 2020.

Similarly, AI has led to a race for patents and IP rights among the world’s leading technology companies. In fact, the number of AI patents granted globally increased by a factor of three from 2012 to 2016, with the USA alone seeing an increase of 1 628 AI patents issued in the same period.

Advances in AI’s “inventiveness” – AI is no longer simply “crunching numbers very quickly” but is generating works of a sort that have historically been regarded as “creative” or as requiring human ingenuity. AI can now independently learn how to perform complicated tasks, prove mathematical theorems, and engage in artistic endeavours such as composing musical works and creating sophisticated artistic works. Using techniques that have developed from our understanding of evolution, molecular biology, neurology, and human cognitive processes, AI is transforming computers into “thinking machines” that are capable of performing creative and inventive tasks at unbelievably high speeds.

Already in 1994 the AI pioneer Stephen Thaler had developed the so-called Creativity Machine which was capable of generating new ideas through artificial neural networks. These networks are collections of on/off switches that automatically connect themselves to form software without human intervention. This system can “brainstorm” new and creative ideas by combining an artificial neural network with another network that assesses the value of the output. The Creativity Machine was apparently involved in generating an invention that was ultimately granted as US patent No. 5,852, 815 in May 1998. This became the first US patent issued on an AI-generated invention. Thaler had cited himself as the sole inventor without any mention of the Creativity Machine.

Another interesting example is the so-called Invention Machine developed by the computer scientist, John Koza. This system is based on genetic programming and is modelled on the process of biological evolution. It is understood that the Invention Machine created an invention that resulted in US patent No. 6,847, 851 granted in January 2005. Likewise, Koza and two other persons were cited as inventors, with no mention of the Inventive Machine.

Further examples of AI inventiveness include computer systems programmed to independently design a new nose cone for a Japanese bullet train; to design new piston geometries for reducing fuel consumption in diesel engines; and to help develop new pharmaceutical compounds.

In a totally different (and surprising!) field of activity - and one that will interest patent attorneys and other patent practitioners - AI technologies have emerged recently to help draft patent applications ie patent specifications and claims. This of course encroaches on territory historically requiring human ingenuity and input from inventors and more particularly by patent attorneys/ practitioners. Is this a challenge or an opportunity, or both, for patent attorneys/ practitioners world-wide? Some examples of this early capability are mentioned below.

An example of the above has been developed by Cloem, a French company, that uses NLP technologies to assist patent applicants to generate patent claims and variants of patent claims, called “cloems.” Another example is AllTheClaims.com and its sister project, AllPriorArt.com (collectively AllPriorArt) which can autonomously generate patent claims and descriptions after parsing and randomly re-assembling patent texts and published applications from the US patent database. A more recent AI-based service called Specifio can prepare software-focused patent applications, even drafting patent specifications and figures after receiving a set of patent claims from a user of the system. Apparently, this system can generate patent applications that are about 90% complete, requiring a substantial reduction in professional time for a patent attorney/ practitioner to complete.

Although such AI platforms still have challenges to overcome at this stage, these appear to forecast a future where AI could reliably and accurately generate parts of, or entire, patent applications, at least in a draft form, without much or extensive input from patent attorneys/practitioners.

Taking the above to its logical conclusion, although it may sound highly speculative at this time, the question arises - would it be

possible in future for invention-creating AI to autonomously complete both the inventive and patenting processes ie without human intervention?

AI’s entry into fields that have historically required “human ingenuity” raises various critical legal and policy questions that need to be addressed. For example, should AIgenerated inventions be protected, and if so, to what extent? And if the patentability of AI-output inventions becomes legally accepted, then should AI also receive inventorship status?

Increased acceptance of AI – The public’s view on AI has become friendlier and more acceptable in recent years – possibly coupled with a better understanding of AI and its potential benefits to society. This can impact on legal and policy considerations. In the USA, for example, the approach to AI has been more conservative and guarded than in far-Eastern countries and in Europe. By contrast, a survey conducted in recent years by the European Parliament has shown that 68% of people surveyed expressed positive views on AI while 79% had positive outlooks on robotics.

AI and How it Interacts - and Conflicts - with Patent Law

In the USA, as far as the author hereof is aware, no official guidance or law amendment has been provided (-other than a decision by the US Patent Office recently – see the Updating note provided below), and very little discussion has taken place, regarding the repercussions or impact of AI on US patent law (which in certain respects could also in due course apply to the patent law of other countries).

The WEF White Paper concludes, after comprehensive and objective reasoning but without coming to any definite proposals, that the US patent law “governance” and treatment of AI can have significant impacts on innovation, the economy and society. Given how quickly AI is advancing, it is paramount that the relevant stakeholders – patent and non-patent professionals alike – proactively and urgently engage in further research and discussions with one another to find ways for the patent system to promote innovation while minimising any negative social and ethical implications. More particularly, the WEF White paper explores four main patent issues affected by AI that merit further discussion, as set out briefly hereunder.

The present US standard on patent-eligible subject matter – Firstly, the present US standard on patent-eligible subject matter needs to be carefully evaluated to determine whether it has any material negative impact on AI or AI-driven technologies per se (such as computer software). If so, the relevant actors should search for possible adjustments to the standard that can better achieve the main objectives of patent law such as promoting innovation, disseminating useful information and incentivising investment in helpful technologies. The anticipated benefits from the contemplated changes must then be weighed against any possible negative social and ethical implications that may arise from such changes. The relevant actors should also consider other available mechanisms for promoting and protecting AI innovation (eg laws on trade secrets or copyright) to help assess whether any of the identified shortfalls in the present patent law subject-matter eligibility standard can be rectified through other means.

Protection of inventions created entirely by AI? – Secondly, the question of whether inventions that are created entirely by AI should be protected by patent law needs to be answered. To help arrive at an effective solution, the relevant actors must diligently analyse the potential positive and negative effects – from technological, socio-economic and ethical viewpoints – by patenting AIgenerated inventions, and then assess these effects in view of one another.

Possible middle grounds between the competing interests must be identified to help the patent system achieve its main objectives in a well-balanced manner. If the relevant actors ultimately decide to allow AI-created inventions to be patentable, then they must also decide whether inventorship should be awarded to AI’s that have generated those inventive concepts.

An updating note by the author hereof – The recent US Patent Office decision of 27 April 2020 on US patent application No 16/524,350. In this decision the US Patent and Trade Mark Office ruled that AI systems cannot be listed or credited as inventors on a US patent. The decision further stated that an “inventor’ under current (US) patent law can only be a natural person. This ruling follows similar stances adopted by IP Offices in other countries – and clearly confirms the present approach of the US Patent Office. In order to change this approach by the USPTO, an amendment to US patent law would be required.

Patent infringement by AI and related liability – Thirdly, present US liability laws do not account for situations where patent infringement is committed by AI. The relevant actors need to explore “who” (or “what”) should be held liable in those situations and how compensation should be assessed.

The different existing liability frameworks must be analysed to identify their relative strengths, and new approaches should be explored to see if these can function more effectively than existing liability systems.

“POSITA” - Are changes required to the present definition? – Fourthly, further discussions are required to determine whether changes are necessary to the present definition of “a person of ordinary skill in the art” (“POSITA”) which is a hypothetical person with which obviousness of an invention is assessed in terms of US patent law. As the use of AI becomes more prevalent, the actual persons “of ordinary skill” who work in various industries will increasingly rely on AI. On the one hand, a categorical exclusion of AI’s involvement from the definition of a POSITA can risk having a non-obviousness standard that fails to accurately reflect the real-world level of obviousness.

However, on the other hand, as AI becomes “smarter,” incorporating the use of AI into the definition of a POSITA would likely result in more inventions being deemed obvious, which would likely result in fewer patents being granted. In this scenario, if AI reaches super-intelligence at some future time, would that not mean that everything, or at least most inventions, will be considered obvious? These questions must be studied to help arrive at a non-obviousness standard that is realistic and accurate.

Conclusion

Consideration by role players in the United States on the above issues (which are discussed in considerable detail in the WEF White Paper) needs to be comprehensive and multi-faceted so that an optimal balance can be struck between the various competing factors. This will improve and assist US patent law to continue adding “the fuel of interest to the fire of genius”, as stated by President Abraham Lincoln, in ways that are socially inclusive, ethically responsible and legally/ technically meaningful. This could also in due course, by analogy, point or guide the way to corresponding or similar AI patent law reform in other jurisdictions.

Andre van der Merwe

The author hereof is a member and director of Cirrus AI. This is a South Africa and Africa AI effort – a private sector-led initiative to create a world-class AI capability to support African research and development across academia and industry. Another member of the Cirrus team, Dr Jacques Ludik, has recently authored a book (published by Amazon) entitled “Democratizing Artificial Intelligence to Benefit Everyone” that is recommended for further general reading on AI issues.

The article was first published in the Newsbriefs Publication of the South African Institute of Intellectual Property Law