In his address to a joint session of Congress, the president predicted that "our country is on the verge of a comeback the likes of which the world has never witnessed." That prediction is backed up by his recent announcements of massive new private sector investments in AI infrastructure and new executive orders to ensure that the U.S. leads the world in the industries of the future. In order to fulfill the promise that those actions suggest, however, it's essential that President Donald Trump support steps to shore up America's intellectual property system, the cornerstone of our innovation economy, rooting out malicious foreign interests and installing new leadership to help guide the comeback. To start, we need to address the fact that legal damages for patent infringement are no longer calculated reliably. U.S. courts have strayed from commonsense assessments to the detriment of American innovation.

Potential obstacles to obtaining patent protection in Europe for an improvement in a general method for machine learning have been highlighted by a recent decision (T0702/20) from the EPO Board of Appeal. The decision relates to an application for a novel neural network apparatus having "loose coupling", based on an error code check matrix, between nodes of the neural network resulting in an initial configuration of the neural network that was argued to speed up training and operation of the apparatus while maintaining discrimination performance. The differences of the claimed invention over the prior art had been acknowledged during prosecution, but the Examining Division had rejected the Application on the basis that the distinguishing features "do not serve a technical purpose, and they are not related to a specific technical implementation either. They merely pertain to the initial, fixed structural definition of an abstract mathematical neural network-like model". During the Appeal, the Applicant provided several arguments as to why the claimed system did indeed serve a technical purpose which were not found persuasive by the Board. In response, the Board noted that a neural network can, in principle (if difficult in practice), be analysed to replace the inputs to each neuron by mathematical functions implemented by the nodes of the previous layer, and ultimately to obtain a mathematical description that describes the output of the neural network as a function of the input.

Dr. Stephen Thaler developed DABUS (Device for Autonomous Bootstrapping of Unified Science), an artificial intelligence (AI) system that can autonomously create patentable inventions. Thaler has filed patent applications in various jurisdictions for two inventions created by DABUS – a food container with side walls having a fractal profile, and a beacon for attracting enhanced attention for example in a search and rescue scenario[1]. In each application, Thaler listed DABUS as the sole inventor, forcing patent offices in various jurisdictions to address the issue of whether an AI system can be an inventor on a patent application. Thus far, the DABUS patent applications have found very limited success in patent offices and courts around the world. In the latest decision, the United States Court of Appeals for the Federal Circuit (CAFC) held that the US Patent Act requires an inventor to be a natural person, and consequently, an AI system cannot be an inventor on a United States patent application.[2] The DABUS applications were initially rejected by the United States Patent and Trademark Office (USPTO).

The UK Intellectual Property Office (Patent Office) has provided fresh guidance on patent applications for artificial intelligence (AI) inventions, including helpful scenarios explaining how to successfully gain AI patents from the UK IPO. This guidance is designed to help ensure the UK remains a cost-efficient forum for applicants to get granted patents in this rapidly evolving area. Artificial intelligence is now applied in a vast range of fields, from pharmaceuticals to the automotive industry, and from industrial chemicals to fintech. The enormous range of possible uses has created challenges for the Patent Office when it comes to examining patent applications related to AI inventions. The UK IPO applies a framework developed by the English Courts when assessing whether computer-implemented inventions, including AI inventions, are excluded from patentability as merely "computer programs as such" or if they escape the exclusion by providing a technical contribution. This involves assessing a number of "signposts" for patentability.

The UK's highest court is set to decide whether artificial intelligence (AI) robots should be allowed to patent their own inventions. Britain's Supreme Court has agreed to hear a computer scientist's bid to list his AI machine as the sole inventor of two separate products, in an application to the UK's patent office. The Supreme Court will hear Dr Stephen Thaler's bid to overturn an earlier ruling from a lower court, banning him from filing a patent application on behalf of his DABUS robot. The case comes after the UK's intellectual property office refused two patent applications, filed by Thaler on behalf of his DABUS system, over his failure to identify a "person" as the inventor of the products. Thaler had sought to file one patent for a "Food Container" and another for a flashing light, under the title "Devices and Methods for Attracting Enhanced Attention," in 2018.

Can an artificial intelligence (AI) system be an inventor? Stephen Thaler recently submitted two patent applications for which an artificial intelligence system named "DABUS" was listed as the sole inventor. Specifically, the first application was directed to a food or beverage container that facilitates stacking.1 The second application was directed to a light device including a neural flame that serves as a signal beacon for human detection.2 The USPTO denied the patent applications for failing to list any human as an inventor.

As per Section 6 of The Patents Act, an application for a patent can be made by any person claiming to be the true and first inventor of the invention. Further Section 2(1)(s) shows how a natural person is set out from others such as the Government under the meaning of'person'. Thus, only a natural person who is true and first to invent, who contributes his originality, technical knowledge or skill to the invention would qualify to be recognized as an inventor in India. However, this was put to test in the case of the Device for Autonomous Bootstrapping of Unified Sentience ("DABUS"), an Artificial Intelligence ("AI") system created by Dr Stephen Thaler. DABUS is trained to substitute aspects of human brain function.

The South African patent office made history in July when it issued a patent that listed an artificial intelligence system as the inventor. The patent is for a food container that uses fractal designs to create pits and bulges in its sides. Designed for the packaging industry, the new configuration allows containers to fit more tightly together so they can be transported better. The shape also makes it easier for robotic arms to pick up the containers. The patent's owner, AI pioneer Stephen L. Thaler, created the inventor, the AI system known as Dabus (device for the autonomous bootstrapping of unified sentience).

In public proceedings, the Legal Board of Appeal of the EPO confirmed that under the European Patent Convention (EPC), an inventor designated in a patent application must be a human being. This was the judgement in combined cases J 8/20 and J 9/20, where the board just dismissed the applicant's appeal. Here, both the applications were made by a Missouri physicist Stephen Thaler, whose AI-system DABUS had made the inventions. Device for the Autonomous Bootstrapping of Unified Sentience, or DABUS, is a computer system programmed to invent by itself. It is, basically, a swarm of disconnected neutral nets that can continuously generate thought processes and even memories that can, over time, generate new and inventive outputs independently.

Increasingly, companies are using artificial intelligence to invent new methods and products. But can a named inventor be a non-human machine under the law? That depends on which country's laws are being applied. The question of whether a country's Patent Act requires an "inventor" to be a human being is a question of statutory construction. For example, in the U.S. the statute requires an application for patent be made "by the inventor…in writing to the Director."1